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]
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.
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]
Exceptional circumstances are circumstances which are:
They need not be:
Exceptional circumstances are NOT regularly, routinely or normally encountered.[7]
Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[8]
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]
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:
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.
[1] Linfox Armaguard Pty Ltd v Transport Workers' Union of Australia [2014] FWC 2645 (Hampton C, 30 April 2014) at para. 31; citing 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) at para. 12, [(2009) 190 IR 342].
[2] 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) at para. 16, [(2009) 190 IR 342].
[3] ibid., at para. 18.
[4] Fair Work Act s.443(5).
[5] Ho v Professional Services Review Committee No 295 [2007] FCA 388 (26 March 2007) at para. 25; citing R v Kelly [2000] QB 198 at p. 208; cited in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 13, [(2011) 203 IR 1].
[6] ibid.
[7] ibid.
[8] ibid., at para. 26.
[9] 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) at para. 11, [(2007) 167 IR 4].