Notice requirements

See Fair Work Act s.414 and s.443(5).

Before a person engages in protected industrial action they must give notice of the action. The notice must specify the nature of the action and the day on which it will start.

Different notice requirements apply to employee claim action, employer response action and employee response action.

The purpose of the notice requirement for employee claim action is to give the employer the opportunity to respond to the action by making relevant preparations. The response may involve making arrangements to deal with unavailability of labour, including making appropriate arrangements in relation to customers, suppliers and other contractors. Whether the terms of the notice are adequate may depend on the nature of the employer's operations including their size, the number of employees, the number of locations, the time at which the action is to occur and the employees potentially taking the industrial action.[1]

A notice of protected industrial action must contain a sufficiently detailed description of the nature of the action, to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action.[2]

Whether a particular notice meets the requirements in s.414(6) will depend upon the terms of the notice and the industrial context.[3]

Nature of industrial action specified

CEPU v Pinnacle Career Development Pty Ltd

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Pinnacle Career Development Pty Ltd [2010] FCA 1350 (3 December 2010), [(2010) 190 FCR 581].

Facts

The union issued a valid notice to the employer that protected industrial action would commence. In response, the employer issued a notice which included the following text:

"In response to the industrial action threatened by you, we put you on notice that any employee that engages in such action will be the subject of an indefinite lockout."

The union argued that the employer's notice did not identify the day on which the responsive action would start, and was therefore invalid.

Outcome

The Federal Court found that the employer's notice must be read in the context of the employee's own notice of industrial action. The Court held that because the notice of an 'indefinite lockout' was responsive to the employee's notice of protected industrial action, the employees were left in no doubt that the employer's action would start in reference to the employee's intended industrial action.

Relevance

Notice of responsive action must be read in the context of the industrial action notice. The Federal Court applied the principle from Telstra v CEPU and highlighted that the purpose of the notice requirement is to give the 'recipient' of the notice an opportunity to respond to the action by making relevant preparations or considering a particular response.

Nature of industrial action NOT specified

Telstra Corporation Limited v CEPU

Telstra Corporation Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698 (Giudice J, Acton SDP, Whelan C, 15 December 2009), [(2009) 190 IR 342].

Facts

The CEPU gave notice to Telstra that included the following text:

"The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia. The employee claim action will occur between the hours of 12:01 am and 11:59 pm on Wednesday 2 December, 2009".

Telstra argued that the terms of the notice ('indefinite stoppage') were too vague, and could never amount to a specification for the purposes of s.414(6).

The CEPU contended that the section did not require the union to provide detailed particulars of the action, only the nature of the action it intended to take.

Outcome

The Full Bench found the notice was invalid as it failed to specify the nature of the industrial action. The Full Bench held that the description of the action contained in the notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action. Although the Full Bench disagreed with Telstra that 'indefinite stoppage' could never comply with the specification requirement from s.414(6), given the scale of Telstra's operations and the number of employees, the notice was inadequate and Telstra was not in a position to make reasonable preparations to deal with the effects of the industrial action.

Relevance

The decision highlights the importance of specifying the nature of the industrial action as required by s.414(6) of the Fair Work Act. Whether notice is specific in any given circumstance will depend on the context in which it appears, including the employer's operations, its size and number of locations.

See Fair Work Act s.414(1)–(3)

For employee claim action, a bargaining representative of an employee who will be covered by the enterprise agreement must give written notice of the action to the employer.

The minimum notice period is three working days or any longer period of notice specified in a protected action ballot order of up to seven working days.

Notice must not be given until after the results of the protected action ballot have been declared.

Commission can extend period of notice

If the Commission is satisfied when making a protected action ballot order that there are exceptional circumstances justifying the period of written notice for employee claim action being longer than 3 working days, it may specify a longer period of up to 7 working days.[4]

The Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances 'justifying' the specification of a longer notice period.[9]

Related information

• What is a day?

Period of written notice for employee claim action extended

Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd [2016] FWC 1275 (Kovacic DP, 29 February 2016).

Facts

The TWU applied for a protected action ballot order in respect of employees of Armaguard who were 'Road Crew' members of the TWU. Armaguard objected, claiming that there were exceptional circumstances which justified the period of written notice being extended to five days. In particular Armaguard cited contingency arrangements that would be needed to minimise cash holdings on clients' premises, as well as a general requirement to maintain constant availability of cash to retailers and ATM facilities.

Outcome

The Commission found exceptional circumstances existed, referring to the potential for a heightened security risk to Armaguard's employees, clients, clients' employees and the wider public. Along with this there was also potential economic impact on third parties – resulting from interruptions to cash collection and distribution – that when considered together constituted exceptional circumstances.

Relevance

The Commission made its determination based on evidence of timeframes involved in arranging appropriate contingency measures, some of which exceeded three working days.

Period of written notice for employee claim action NOT extended

CEPU v Australian Postal Corporation

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2007] AIRC 848 (Lawler VP, 9 October 2007), [(2007) 167 IR 4].

Facts

The CEPU obtained a protected action ballot order in respect of certain employees of Australia Post. Australia Post made an application to vary the order to allow for a 7 day written notice period, rather than 3 days as specified in the order. This was claimed to be necessary owing to Australia Posts' statutory obligations regarding service standards, the size and number of its businesses and due to the effect industrial action would have on its operations during a seasonal peak and election period to the detriment of the community.

Outcome

Following a weighing of competing factors, the Commission was not persuaded that the circumstances relied on were so exceptional as to justify an extension of the period and reduction in the effectiveness of the employee bargaining position it would entail.

Relevance

While circumstances relied upon in an application may be considered as 'exceptional', the onus is on the applicant to show exceptional circumstances justify an extension of the notice period.

See Fair Work Act s.414(5)

For employer response action, the Fair Work Act does not specify a time period for the provision of notice, just that it must be written and given before the employer response action commences.

The employer proposing to take the action must:

• give written notice to each bargaining representative of an employee who will be covered by the proposed enterprise agreement, and
• take all reasonable steps to notify employees who will be covered by the proposed enterprise agreement.

See Fair Work Act s.414(4)

For employee response action, the Fair Work Act does not specify a time period for the provision of notice, just that it must be written, given before the employee response action commences and specify the nature of the action and the date that it starts.

A bargaining representative of an employee who will be covered by the enterprise agreement must give written notice of the action to the employer.

Related information

• Employee claim action
• Employer response action
• Employee response action