Fair Work Commission

Introduction

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]

Reduction in payments based on partial work ban

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.

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]

Form of partial work ban notice

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.

Content of partial work ban notice

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]

Manner of giving notice

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]

Orders by the Commission relating to partial work bans

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.

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.

Case examples

Employer gives notice of non-payment

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]

Employer does not give notice – no reduction in payments

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]

References

^[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).