Partial work bans

Industrial action may take the form of a partial work ban which is defined as industrial action that is not:

• a failure or refusal by an employee to attend for work
• a failure or refusal by an employee who attends for work to perform any work at all, or
• an overtime ban.[1]

A partial work ban is industrial action that falls short of a total stoppage of work.[2]

For instance, a work ban that is limited to a refusal by teachers to mark homework could be considered a partial work ban.[3]

Payments for partial work bans

The prohibition of payment to an employee in s.470 does not apply to partial work bans that are protected industrial action, other than for overtime bans.

In the case of a partial work ban employers have discretion, subject to the notice requirements, to either:

• accept the partial performance of work and pay an employee in full, or
• make a reduced payment to an employee based on the partial performance of work by the employee, or
• refuse to accept the performance of any work by an employee, until the employee is prepared to perform all of his or her normal work, and not pay the employee during the period of the industrial action.[4]

See Fair Work Act s.471

If an employee engaged, or engages in protected industrial action that is a partial work ban, and the employer gives the employee a written notice stating that because of the partial work ban, the employee's payments will be reduced by the proportion specified in the notice, then the employee's payments are reduced by that proportion in relation to the industrial action period.

The industrial action period is the period:

• starting at the later of:
  • the start of the first day on which the employee implemented the partial work ban, or
  • the start of the next day, after the day on which the notice was given, on which the employee performs work; and
• ending at the end of the day on which the ban ceases.[5]

An illustrative example is provided in the Explanatory Memorandum:[6]

Allison works at the Sandy Shores Private Clinic which operates seven days a week. On Friday 13 May 2011, Allison's bargaining representative provides her employer with three working days' notice of protected industrial action by employees it represents that will take the form of partial work bans over a two week period, commencing the following Thursday. The bans include refusing to admit new patients before noon on each day.

On the Monday, Allison's employer decides that the employees' payments will be reduced by 40 per cent on account of any partial work bans and gives the bargaining representative and affected employees written notice of the proposed reductions over the two week period. The reductions begin on the Thursday, the first day on which the bans are implemented.

In calculating a reduced payment based on the partial performance of work, an employer should be guided by the Fair Work Regulations which prescribe how the proportion is to be worked out.[7]

The reduction in payments cannot simply be arrived at by estimating the potential cost impact of the industrial action and allocating this cost to the employees undertaking industrial action.[8]

If the Commission has ordered under s.472 that the employee's payments be reduced by a different proportion – then they are to be reduced by the proportion specified in the order.

The rest of the terms of the modern award, enterprise agreement or contract of employment that applies to the employee's employment will continue to have effect.

Working out proportion of reduction of employee's payments

The proportion of any reduction for an employee or class of employees is worked out by carrying out the following steps:

Step 1: Identify the work that an employee or a class of employees is failing or refusing to perform, or is proposing to fail or refuse to perform.

Step 2: Estimate the usual time that the employee or the class of employees would spend performing the work during a day.

Step 3: Work out the time estimated in Step 2 as a percentage of an employee's usual hours of work for a day.

The solution from working through the above steps is the proportion by which the employee's payment will be reduced.[9]

'Work' is capable of meaning something more than just the physical task that is banned and that is the impact of that task on the 'work' of the employee.[10]

A notice about the reduction of an employee's payments due to a partial work ban must be in a legible form and in English.[11] Communication should have regard to the needs of the workforce, particularly regarding the cultural diversity of the employees and their language skills.

A notice about a partial work ban given to an employee must:

• specify the day on which the notice is issued
• specify the industrial action engaged in, or proposed to be engaged in, that constitutes the partial work ban
• state that the notice will take effect from the later of:
• the start of the first day of the partial work ban
• the start of the first day after the day on which the notice is given to the employee, if the employee performs work on that day, and
• state that the notice will cease to have effect at the end of the day on which the partial work ban ceases.

If the notice is a notice stating that, because of the ban, the employee's payments will be reduced by a proportion specified in the notice, it must also:

• state that the employee's payments will be reduced by an amount specified in the notice for each day the employee engages in the partial work ban
• specify an estimate of the usual time the employer considers an employee would spend during a day performing the work that is the subject of the work ban, and
• specify the amount by which the employee's payments will be reduced for each day the employee engages in the work ban.

If the notice is a notice stating that, because of the ban the employee will not be entitled to any payments, it must also state that the employee will not be entitled to any payment for a day on which the employee engages in the partial work ban.[12]

The employer is taken to have given a notice about partial work bans to the employee if the employer:

• has taken all reasonable steps to ensure that the employee, and the employee's bargaining representative (if any), receives the notice, and
• has complied with any requirements, relating to the giving of the notice, prescribed by the Fair Work Regulations.

Giving notice about partial work bans

An employer may give notice to an employee about reduction in payments relating to a partial work ban in one of the following ways:

The employer may give the notice to the employee personally.

The employer may send the notice by pre-paid post to:

• the employee's residential address, or
• a postal address nominated by the employee.

The employer may send the notice to:

• the employee's email address at work, or
• another email address nominated by the employee.

The employer may fax the notice to:

• the employee's fax number at work
• the employee's fax number at home, or

another fax number nominated by the employee.[13]

See Fair Work Act s.472

The Commission may make an order varying the proportion by which an employee's payments are reduced, however the Commission may only make an order if a person has applied for it.

An employee, or the employee's bargaining representative, may apply to the Commission for an order if a notice has been given stating that the employee's payments will be reduced.

In considering making such an order, the Commission must take into account:

• whether the proportion specified in the notice about the reduction of payments was reasonable having regard to the nature and extent of the partial work ban to which the notice relates, and
• fairness between the parties taking into consideration all the circumstances of the case.

An illustrative example is provided in the Explanatory Memorandum:[14]

Allison's bargaining representative applies to the Commission to reduce the proportion of Sandy Shores' proposed deduction. After taking into account whether the 40 per cent deduction was reasonable having regard to the nature and extent of the partial work bans and fairness between the parties, the Commission orders Sandy Shores to reduce the deduction to 15 per cent and to pay the difference to the employees.

Application for an order in relation to partial work bans

An application to the Commission for an order to vary the proportion by which an employee's payments are reduced must include the following documentation:

• a completed and signed application form [Form F39], and
• a copy of the written notice given by the employer to the employee.

Link to application form

• Form F39 – Application for an order in relation to partial work bans

All forms are available on the Forms page of the Commission's website

Order varying the proportion by which an employee's payments have been reduced

AFMEPKIU v ASC Pty Ltd

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ASC Pty Ltd [2012] FWA 1377 (Bartel DP, 16 February 2012).

Facts

Protected industrial action in the form of bans on work activities including overtime and call outs was taken by Supervisors engaged by ASC. A Notice of Reduction in Payment was issued by the respondent, indicating that reductions in daily rates of pay would be implemented' ... based on the amount of time Supervisors would usually spend during a day performing the work subject to a work ban.'

Outcome

The Commission found that the employer overestimated the extent of the bans and that its approach led to an overstating of the percentage deduction. After taking into account the effect of overtime bans in calculating the extent of the partial work bans, it was determined that the proportional reductions implemented by the employer should be modified. The Commission also took into account the additional cost impact on the employer caused by disruption to the work of other employees as a result of the bans.

Relevance

The Commission held that the appropriate approach to the assessment of a proportional reduction in payment in this circumstance was to identify the time spent on banned work, calculated as a percentage of average weekly hours.

United Voice – Northern Territory Branch v Commissioner for Public Employment for the Northern Territory

United Voice – Northern Territory Branch v Commissioner for Public Employment for the Northern Territory[2014] FWC 1185 (Catanzariti VP, 17 February 2014)

Facts

United Voice members organised protected industrial action regarding their employment with the Northern Territory Fire and Rescue Service. The Commissioner for Public Employment for the Northern Territory issued a notice of his intention to deduct $124 for each shift on which industrial action was taken. United Voice then notified the respondent of its intention to apply for an order varying this amount to $11 per shift, and also notified that it had advised members not to participate in the industrial action until the application was determined.

Outcome

The Commission considered the respondent's approach to calculating this reduction not only erroneous but also inherently flawed, in that it estimated the potential cost impact of the industrial action and allocated it to the employees undertaking the action. While the respondent's approach was rejected, the applicant's submission was also not accepted.

Having regard to evidence and submissions of both parties, the Commission ordered that the amount by which payments should be reduced was 15 per cent of the amount that would otherwise be paid for the completion of a shift.

Relevance

Given the difficulties in determining wages for individual shifts, a proportionate reduction in the form of a percentage of total wages per shift was considered a more appropriate form for expressing the reduction in payments. The Commission held this to be consistent with the authorities and stated the correct approach is to look at all of the circumstances of the case.

Transport Workers Union v Department of Territory and Municipal Services (ACTION)

Transport Workers Union v Department of Territory and Municipal Services (ACTION)[2010] FWA 4558 (Deegan C, 19 June 2010).

Facts

The TWU gave notice of an intention to impose a partial work ban on the collection of cash fares by bus drivers for a period of one week. The respondent issued notices informing employees of a two-thirds reduction in payment for each day they took part in the partial work ban. The TWU asserted this reduction was unreasonable as the collection of fares accounted for no more than five or six minutes of a driver's time per shift.

Outcome

In considering whether the proposed pay reduction was 'reasonable', the Commission found the ban would affect revenue and may inconvenience passengers. It also took into account that a bus service would continue to be provided by drivers taking part in the industrial action, and that a large part of the operating cost was funded by government subsidy and not the collection of revenue. As such, it was determined that the most appropriate factor was the percentage fare collection contributed to the overall cost. An order was made reducing employee payments by 20.1 per cent.

Relevance

The Commission determined that in this circumstance the most appropriate method was to reduce the employee's pay by the same amount as the employer revenue was reduced by the work ban.

Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office)

Independent Education Union (South Australia) Incorporated v Catholic Schools Endowment Society Incorporated (Catholic Education Office) [2016] FWC 892 (Hampton C, 15 February 2016); [2016] FWC 1057 (Hampton C, 23 February 2016).

Facts

The IEU notified six Catholic schools in South Australia of the intention to take protected industrial action including partial work bans. The employers notified all staff that participation in some of the partial work bans would result in a percentage reduction in their salaries.

The IEU sought an order from the Commission to reduce the salary reductions to zero on the basis that the notices were not valid under the Fair Work Act because the employers did not provide the notice, or take reasonable steps to provide the notice, to the employees' bargaining representatives. In the alternative, the IEU sought a significant decrease in the salary reductions on the basis that the employers' proposals were not consistent with the legislation and were unfair.

Outcome

The Commission found that the notices had been provided to the employees as relevantly required by the Fair Work Act. The Commission held that there was no requirement that the notices must also be provided to the bargaining representatives if they have been given (directly) to each of the employees as required by s.471(1)(c).

The Commission found that the employers' approach to the calculation of the proposed reductions was fundamentally compliant with the legislative scheme however there was no identifiable allowance made for any (other) meaningful work that might be undertaken by the employee during that time. The Commission varied the notices to change the reduction from 7 per cent to 5 per cent for partial work bans on undertaking relief teaching.

Relevance

It would generally be prudent for an employer to also provide the notice to the bargaining representative(s) given that it may not always be possible to demonstrate the actual provision of the s.471 notice to every employee.

The formula adopted by employers to calculate a reduction in salary must not result in an unreasonable reduction when applied to one of the particular partial work bans given the circumstances applying to that work under the Enterprise Agreement.

Order NOT varying the proportion by which an employee's payments have been reduced

Assessment undertaken prospectively not retrospectively

The Australian Institute of Marine and Power Engineers v Port of Brisbane Pty Ltd [2011] FWA 4653 (Simpson C, 23 August 2011).

Facts

An application was made by AIMPE seeking an order that union members engaged in partial work bans have the reduction determined by the employer altered from 35 per cent to 4.16 per cent while work bans were in effect. This reduction excluded periods of work where such bans were suspended in order to ensure the safety of vessel, crew and marine environment.

Outcome

While finding that some errors were made by the respondent in the methodology it used to assess the reduction percentage, the Commission was satisfied that the adoption of 35 per cent was not unreasonable at the time. The Commission was not satisfied that a reduction of this percentage was warranted on the basis of the nature and extent of the partial work ban. As the applicant did not provide sufficient evidence to persuade the Commission that the 35 per cent proportionate reduction should be disturbed, the application was dismissed.

Relevance

The Commission held that an assessment of whether a proportionate reduction is reasonable should have regard to the nature and extent of a partial work ban. The Commission also found that this assessment is to be undertaken prospectively at the time of issuing the notice, rather than retrospectively after the partial work ban ceases.

If an employee engaged, or engages, in protected industrial action that is a partial work ban on a day and the employer gives to the employee a written notice stating that, because of the ban:

• the employee will not be entitled to any payments, and
• the employer refuses to accept the performance of any work by the employee until the employee is prepared to perform all of his or her normal duties;
• then the employee is not entitled to any payments in relation to the industrial action period.[15]

Failure or refusal to attend for, or perform work

If an employer has given an employee a notice of non-payment, and the employee fails or refuses to attend for work, or fails or refuses to perform any work at all if he or she attends for work, during the industrial action period, then:

• the failure or refusal is employee claim action if the original protected industrial action is employee claim action, or
• the failure or refusal is employee response action if the original protected industrial action is employee response action.[16]

If an employee engaged, or engages, in a partial work ban against an employer, and the employer does not give the employee a notice about the reduction of payments or non-payment, then the employee's payments for the day are not to be reduced because of the ban.[17]