Two recent decisions by the Fair Work Commission have put the spotlight on notice requirements under the Fair Work Act 2009 (Cth) (FW Act) for industrial action by employees arising from enterprise bargaining negotiations.
Notice requirements under the FW Act
Under the FW Act, there are various steps a union or employee must take in order for any proposed industrial action to be considered “protected” industrial action.
Before industrial action can lawfully be taken, the party proposing to take the action must apply to the Fair Work Commission (the Commission) for a protected action ballot order. A protected action ballot which authorises the proposed industrial action must also be undertaken. An exception to this process is where the proposed action is in response to industrial action by the other party in enterprise bargaining, in which case there is no requirement for a protected action ballot.
Once the protected action ballot has authorised the proposed action, a bargaining representative (usually an official from the relevant union) must give written notice of the action to the employer before an employee can engage in industrial action in relation to a proposed enterprise agreement.
The period of the written notice given must be at least three working days, or a longer period, if specified in the protected action ballot order, and the notice must specify “the nature of the action and the day on which it will start”.
The practical operation of these requirements was illustrated in two recent decisions by Commissioner Hampton regarding Linfox Armaguard Pty Ltd (Armaguard) and the Transport Workers Union (TWU).1
Armaguard was in the process of bargaining for a proposed enterprise agreement to cover its road crews in South Australia that undertake the cash transit and ATM servicing for Armaguard in that state.
The TWU was the bargaining representative for many of the employees who would be covered by the proposed agreement.
As part of the bargaining process, the TWU applied to the Commission for a protected action ballot order regarding proposed industrial action, which Armaguard unsuccessfully opposed.
However, Armaguard was successful in arguing that there were exceptional circumstances under the FW Act which justified a longer period of written notice of the proposed industrial action. Commissioner Hampton ordered that the TWU give five working days written notice of certain elements of the proposed action – being bans on two- person crewing and ATM servicing, and stoppages over four hours – rather than the default three working days required under the FW Act.
This extended notice requirement was based on the particular nature of the work, the extent of the cash transit business in South Australia conducted by Armaguard and the implications of some forms of the potential industrial action for the business, its customers and, potentially, the public.
Commissioner Hampton also gave particular weight to Armaguard’s capacity, as the employer, to make reasonable contingency arrangements for the collection of money and the servicing of ATM’s impacted by the nature of the work and the regulatory and security environment in which it is performed.
Notices of proposed industrial action
A subsequent ballot was carried out, and the employees endorsed various forms of action.
The TWU gave three notices to Armaguard of proposed industrial action. The notices variously described the nature and timing of the industrial action as, from 23 April 2014, “an unlimited number of bans or limitations on the performance of” each of ATM servicing, two-man crewing and overtime.
The TWU subsequently gave a further four notices to Armaguard, each giving three days’ notice of the proposed action, and variously describing the nature and timing of the industrial action as:
- “an unlimited number of bans or limitations on the performance of duties not listed in the job description or duty statement”, from 23 April 2014;
- “stoppages of work for up to and including 1 hour”, from 23 April 2014 at 5:00am to 23 April 2014 at 5:59am;
- “stoppages of work for up to and including 2 hours”, from 23 April 2014 at 6:00am to 23 April 2014 at 7:59am; and
- “stoppages of work for up to and including 4 hours”, from 23 April 2014 at 8:00am to 23 April 2014 at 12:00pm.
Armaguard applied for orders that the impending industrial action stop, on the basis that it was not protected industrial action. Armaguard argued that the notices of the proposed industrial action were deficient because:
- the notices did not specify the precise nature of the industrial action as required by the FW Act and, whether read together or separately, the descriptions were ambiguous and misleading; and
- the three notices of the work stoppages were, in reality, notice of a seven-hour work stoppage, and the TWU had not given five working days’ notice as required by Commissioner Hampton’s earlier decision in relation to stoppages over four hours’ duration.
The TWU contended that each of the notices provided to Armaguard should be treated individually, and in each case they reflected the industrial action authorised by the protected action ballot. Accordingly, all of the notified industrial action was protected under the FW Act and no orders could or should be made.
In relation to the work stoppages, the TWU argued that it had issued three separate notices, each for stoppages of under four hours’ duration, and was only required to give three days’ notice.
Commissioner Hampton on the notices of proposed industrial action
The Commissioner considered that the notices given by the TWU, with the exception of those relating to work stoppages, referred to “an unlimited number of bans or limitations on the performance of” the various elements of the work cited in each instance. The notices did not specify the nature or extent of the bans or limitations, nor did they specify whether they applied to all or only some of the work in question.
Given the nature of the work in question, the Commissioner found that the difference between the practical consequences of a ban or limitation on some of the work, and a total ban, was “very significant”. When taken into account with the fact that the notices did not state whether the ban or limitations were for a specific or infinite period, “very little” was actually revealed about the nature of the proposed industrial action.
Accordingly, Commissioner Hampton found that all of the notices which were issued by the TWU, other than those relating to work stoppages, provided insufficient detail regarding the nature of the proposed industrial action, and did not meet the notice requirements of the FW Act.
Commissioner Hampton on the notices of proposed work stoppages
Regarding the notices relating to work stoppages, Commissioner Hampton found that in each case the nature of the action, being a stoppage of work for a set duration, was adequately specified, and provided sufficient detail of the nature of the action to meet the FW Act’s notice requirements.
However, the Commissioner also found that the three work stoppages notices, when taken together, meant that a work stoppage was to be undertaken by the same group of employees over a period running from 5.00am to 12.00pm on 23 April 2014. In practice, this amounted to a work stoppage of seven hours. The Commissioner remarked that the Commission should “understand and consider the real world impact of the notices”, and to overlook their effective application would make a nonsense of the requirements of his earlier decision requiring five days’ notice for work stoppages of four or more hours.
Accordingly, the Commissioner found that the work stoppages notices did not provide the required five days’ notice.
The Commissioner ordered, among other things, that the proposed industrial action be stopped for the period covering up to and immediately after the notified industrial action. Following the expiry of this period, however, the TWU was free to organise, and its members were free to engage in, industrial action provided they met the relevant requirements of the FW Act.
Bottom line for employers
Industrial action taken or threatened by employees must meet certain notice requirements under the FW Act in order to be protected industrial action. If the action or proposed action is not protected industrial action, the Commission must make orders to stop it.
When faced with an application for a protected action ballot order, consider whether the nature of your business and the potential impact of the proposed industrial action on your business, customers or the public warrant seeking an extended notice period for the proposed action under the FW Act.
When you receive notification of impending industrial action, check that it is given within the required amount of notice, and carefully consider whether the notification accurately describes the nature of the action and the day on which it will start. Restating the description of the action set out in the protected action ballot may not be enough to meet the notice requirements under the FW Act.