Employers sometimes seek that, if the Commission makes a protected action ballot order (PABO), it impose a longer period of notice of industrial action on a union beyond the standard 3 working days.
In these cases, employers submit that there are exceptional circumstances that justify extending the notice period beyond 3 days and up to 7 days pursuant to s 443(5) of the Fair Work Act (the Act).
A new FWC Full Bench decision (National Tertiary Education Industry Union v Charles Darwin University  FWCFB 4011) provides clear guidance on how FWC will approach this issue.
The case concerned a PABO application by the NTEU in respect of its members employed by Charles Darwin University.
In making the PABO, Commissioner Wilson, at the University’s request, extended the period of written notice from 3 to 5 working days for protected industrial action which will, or likely to, have an impact on students sitting exams, having exams marked, receiving exam results or graduating.
In making the PABO, Commissioner Wilson found that, although there was no evidence before him, there were exceptional circumstances. He found the predisposition of FWC faced with an application to suspend or terminate notified industrial action that had a direct negative impact on students to be the exceptional circumstance. He took the view that the University would likely seek suspension of such action and FWC would likely lean toward its suspension.
Maurice Blackburn on behalf of the NTEU successfully appealed the PABO to the FWC Full Bench.
The Full Bench found the exercise of the discretion under s 443(5) of the Act results in an interference with the right of a union to otherwise give 3 working days’ written notice and the FWC should not lightly curtail this right. It held that the term “exceptional circumstances” has its ordinary meaning and FWC is required to not only find that exceptional circumstances exist but that those circumstances justify the extension of the notice period.
The Full Bench found Commissioner Wilson erred by proceeding on an assumption as to the likely outcome of an application for termination or suspension of industrial action under s 424. In coming to this view, it stated that the Act requires FWC to be satisfied of a number of requirements before it can suspend or terminate industrial action and there is nothing in the Act or the FWC decisions to suggest a predisposition towards a particular outcome. It also found that the Commissioner erred by failing to consider whether there were exceptional circumstances “justifying” a longer period of notice.
At the Appeal hearing the University submitted that if the Appeal was upheld the Full Bench should determine the matter on the basis of the material before it including what it asserted was “expert” and “generic” evidence of the impact of industrial action on student welfare tendered in an earlier FWC Full Bench decision.
The Full Bench was prepared to determine the matter but was not satisfied there were exceptional circumstances justifying the period of written notice being extended. It found that each decision turns on its own facts and earlier decisions do not relieve FWC of its obligation to determine each case on the facts before it. It noted that while there may be some generic evidence about student welfare tendered in earlier decisions there was no evidence before it regarding the University’s circumstances.
The Full Bench ordered the PABO be varied to remove the extension of the notice period.
The decision makes clear that FWC will take a cautious approach when considering whether to exercise the discretion under s 443(5) and an employer will have to tender probative evidence of its circumstances to satisfy the FWC that it should exercise the discretion.