National Tertiary Education Industry Union v Charles Darwin University

In the matter of the National Tertiary Education Industry Union against Charles Darwin University, the Full Bench of the Fair Work Commission heard an appeal against a decision rendered by Commissioner Wilson. The appeal centred on the interpretation and application of section 443(5) of the Fair Work Act 2009, specifically concerning the length of the written notice period required for protected industrial action. The appeal was lodged by the Union against a decision that granted the University a longer notice period than the standard seven days, finding that exceptional circumstances existed.

The central legal issue before the Full Bench was whether the Commissioner erred in his finding that exceptional circumstances justified a longer notice period than the statutory minimum. The Union argued that the Commissioner had not sufficiently justified the extension of the notice period, and that there were no exceptional circumstances warranting such a departure from the statutory minimum. The University, on the other hand, contended that the extended notice period was justified due to the nature and scale of the proposed industrial action.

The Full Bench held that the Commissioner had erred in finding that there were exceptional circumstances justifying the longer notice period. The reasoning was grounded in the absence of clear and compelling evidence that the standard notice period would be inadequate to allow the University to respond appropriately to the proposed action. The Full Bench found that the Union had not been given a fair opportunity to address the University's concerns about the impact of the industrial action. Consequently, the Full Bench allowed the appeal, quashed the part of the decision concerning the notice period, and varied the protected action ballot order to reflect the standard seven-day notice period.