The Fair Work Commission has power to extend the notice period required under s 414 of the Fair Work Act (3 working days) for proposed industrial action under ‘exceptional circumstances’. In determining whether there are exceptional circumstances, the particular facts and circumstances of each case need to be considered.

Facts and circumstances to be considered include the impact of industrial action on third parties. Industrial action in the form of a stoppage of work will almost always involve some impact with cost implications on third parties, including suppliers, customers, or subcontractors. In most instances, it is an ordinary consequence of such industrial action. The following factors are relevant in determining whether such impact is great enough to constitute exceptional circumstances:

• the nature, extent, and duration of the proposed industrial action;
• the direct effect on the employer;
• the effect of an extension on the bargaining power of employees;
• the range of mitigative strategies which an employer may adopt within the standard notice period; and
• the capacity of the employer to take protected response action.

In CFMMEU v Hutchison Ports Australia Pty Ltd [2020] FWC 3616, Hutchison Post Australia Pty Ltd (HPA) successfully applied to extend the notice period from 3 to 5 days partly on this basis.

HPA gave evidence the CFMMEU’s proposed industrial action would adversely impact third parties, including customers, suppliers and end users of freight handled by HPA. The consequent delays at its terminals would lead to additional costs to shipping lines and agents, and cause contents of refrigerated containers to deteriorate. HPA also gave evidence mitigative strategies were limited, as the proposed industrial action involved a ban on subcontracting or outsourcing, and there are only three major stevedoring companies which means there was limited options to subcontract work.

The Commission acknowledged these difficulties but noted they did not themselves constitute exceptional circumstances because the structure of the stevedoring industry has had few major players and remained unchanged for some time, and the three major stevedoring companies are adept at subcontracting between themselves and engage in this process in the normal course of business, even when no industrial action is being taken.

However, in considering the above difficulties in combination with those associated with COVID-19, listed below, the Commission found there were exceptional circumstances.

• The impact of reduced transport services on an already difficult process of responding to delays caused by protected industrial actions (especially given the indefinite period of the proposed stoppage).
• The reduced capacity of the majority of companies operating to withstand loss or damage as a result of protected industrial action being taken in the operations of one of three main providers of stevedoring services (particularly concerning where contents may include supplies to assist in stopping the spread of COVID-19 or destined for hospitals, aged care facilities, schools and providers or other front-line services).

While the CFMMEU offered an undertaking to exclude COVID-19 materials from protected industrial action, the Commission noted the practical limitations given HPA has no visibility over contents to separate COVID-19 materials and any attempt at doing so would take an unreasonable amount of time.