Threats to life, personal safety, health or welfare
Section 424 of the Fair Work Act states that the Commission must suspend or terminate protected
industrial action that is being engaged in or is threatened, impending or probable, if satisfied that
the protected industrial action has threatened, is threatening or would threaten:
• to endanger the life, the personal safety or health, or the welfare, of the population or a part
of it, or
• to cause significant damage to the Australian economy or an important part of it.
It has been established that the following terms are to be given their ordinary meanings.
209
The
following dictionary definitions have been adopted previously:
Health – the general condition of the body or mind with reference to soundness or vigour.
210
Welfare – the state of faring well, well-being.
211
Has threatened, is threatening or would threaten
The appropriate test is not whether the protected industrial action ‘would’ endanger, but rather
whether it would ‘threaten’ to endanger.
212
The simple existence of a threat to safety or health, or welfare, is insufficient, even if it exists as a
result of the protected industrial action. The danger must be probable, rather than simply a possible
eventuality.
213
Endanger life, personal safety or health
Conduct that puts a person’s physical or mental state at risk of material detriment, or that materially
hinders or prevents improvements in a person’s poor physical or mental state, may qualify as
conduct that endangers personal health or safety.
214
Even if conduct is not serious enough to endanger life, it might constitute a significant risk to
personal safety or health.
215
The impact of the conduct must be more than merely to cause inconvenience to the persons
concerned. It must expose them to danger.
216
Welfare
The term welfare is not limited to situations where life, personal safety or health is endangered.
217
209
Transit Australia Pty Ltd v Transport Workers’ Union of Australia [2011] FWA 3410 (Asbury C, 31 May 2011)
at para. 8.
210
University of South Australia v National Tertiary Education Industry Union [2009] FWA 1535 (O'Callaghan
SDP, 4 December 2009) at para. 35.
211
State of Victoria - Department of Health and Community Services v Health Services Union of Australia Print
L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.
212
Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWA 44 (Kaufman SDP, 3 August
2009) at para. 29, [(2009) 187 IR 119].
213
State of Victoria - Department of Human Services v Health Services Union [2012] FWA 8376 (Gregory C,
4 October 2012) at para. 80, [(2012) 225 IR 306].
214
Victorian Hospitals’ Industrial Association v Australian Nursing Federation [2011] FWAFB 8165 (Boulton J,
Acton SDP, Lewin C, 15 December 2011) at para. 51, [(2011) 214 IR 148].
215
ibid.
216
ibid.
217
State of Victoria - Department of Health and Community Services v Health Services Union of Australia Print
L9810 (AIRCFB, McIntyre VP, Williams DP, Hingley C, 3 March 1995) at para. 15.