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How specific is specific when it comes to a notice of intention to take industrial action?

Notice to take industrial action

United Voice (UV) and the Australian Nursing and Midwifery Federation (ANMF) gave separate notices to the employer, National Patient Transport Pty Ltd (NPT) of their intentions to take protected industrial action. The notices were identical except in relation to the name of the union. The UV notice was in the following terms:

“The Ambulance Section of United Voice hereby gives three working days' notice pursuant to Section 414 of the Fair Work Act of the following protected industrial action to be taken by employees of NPT, who are Transport Officers, Ambulance Transport Attendants, Clinical Instructors and Client Service Officers and who are members of United Voice, commencing from the first shift on Friday 13 April 2018:

• The wearing of campaign related materials, such as t-shirts, badges, and stickers, and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public.

• The distribution of campaign related materials to patients, their families, the public and the media and stopping work for up to ten minutes duration on each occasion to explain the campaign-related material to patients, their families and the public.

• All staff to return to their designated branch for lunch.

• A ban on completing small blue Patient Care Records.”

Employer argued that the notice to take industrial action was insufficiently specific

NPT brought an application to stop the industrial action in the Fair Work Commission under s.418 of the Fair Work Act 2009 arguing that the notice was invalid as it failed to satisfy the requirements of s.414(6), namely, the requirement to “specify the nature of the action and the day on which it will start”.

NPT argued that in respect of the first two actions, it was not sufficiently clear from the notice as to the nature of the action and as such NPT could not respond appropriately to the proposed industrial action. It also argued that this lack of clarity was compounded by the fact the notice did not put an end date to the industrial action and the fact that both UV and ANMF intended to simultaneously take the industrial action.

The Decision of the FWC

The Commissioner found that although the wearing and distribution of campaign related materials was not of itself industrial action, the stoppage of work for up to ten minutes “on each occasion” was industrial action.

The Commissioner agreed with NPT’s first argument that the notice was not sufficiently clear. This stemmed from the words “for up to ten minutes on each occasion”. The Commissioner held that this could mean little to no disruption to the business (eg only a handful of employees taking a few stoppages during each shift) to a situation where every employee is participating in a continuous stoppage. The Commissioner held that the notice did not give NPT any ability to gauge how much of its workforce would be participating in the stoppage (particularly as the employees worked on the road and away from direct supervision of management) and for how long. NPT therefore could not properly respond to the industrial action.

In respect of NPT’s other submissions, the Commissioner rejected its argument that the notice was deficient because it did not contain an end date for the industrial action. The Commissioner held that “it may well be” the case that the action might continue for some time and form part of the “inconvenience and expense” to an employer inherent in any industrial action. Similarly, the Commission did not agree with NPT’s submission that the fact that both UV and the ANMF were to take industrial action simultaneously added to the uncertainty and confusion, holding that there was no evidence from NPT on this point and that he was “not persuaded that this feature of the notifications affects whether or not they have sufficiently specified the action to be taken”.

Lesson for employers

This case demonstrates the importance of an employer critically examining the words contained in a union’s notice to take protected industrial action to determine if there is a basis to argue that the notice is invalid due to a lack of specificity about the industrial action the employer will face. If the employer can successfully argue a lack of specificity in the notice, then any industrial action taken pursuant to the notice will be unlawful.

National Patient Transport Pty Ltd T/A National Patient Transport v United Voice; Australian Nursing and Midwifery Federation [2018] FWC 2068 (16 April 2018)

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