Industrial action may take the form of a partial work ban which is defined as industrial action that is not:
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]
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:
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:
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.
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:
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:
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:
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 employer may send the notice to:
The employer may fax the notice to:
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:
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.
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:
All forms are available on the Forms page of the Commission's website
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:
then the employee is not entitled to any payments in relation to the industrial action period.[15]
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:
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]
[1] Fair Work Act s.470(3).
[2] Explanatory Memorandum to Fair Work Bill 2008 at para. 1866.
[3] Explanatory Memorandum to Fair Work Bill 2008 at para. 1865.
[4] Fair Work Act s.471(4).
[5] Fair Work Act s.471(5).
[6] Explanatory Memorandum to Fair Work Bill 2008 at para. 1875.
[7] Fair Work Regulations r.3.21.
[8] United Voice – Northern Territory Branch v Commissioner for Public Employment for the Northern Territory [2014] FWC 1185 (Catanzariti VP, 17 February 2014) at para. 22.
[9] Fair Work Regulations r.3.21.
[10] Transport Workers Union v Department of Territory and Municipal Services (ACTION) [2010] FWA 4558 (Deegan C, 19 June 2010) at para. 34.
[11] Fair Work Regulations r.3.22.
[12] Fair Work Regulations r.3.23.
[13] Fair Work Regulations r.3.24.
[14] Explanatory Memorandum to Fair Work Bill 2008 at para. 1880.
[15] Fair Work Act s.471(4).
[16] Fair Work Act s.471(4A).
[17] Fair Work Act s.471(8).