FWC buries employer’s argument for more notice of industrial action

When employees and unions seek to take protected industrial action in relation to bargaining for an enterprise agreement, they are required to give 3 working days’ notice of the action. An employer can apply to the Fair Work Commission (FWC) for a longer period of notice of up to 7 days, which will only be granted if the FWC is satisfied there are exceptional circumstances – that is, circumstances that are out of the normal course of events, unusual, uncommon or extraordinary.

The FWC considered this issue recently in Australian Workers’ Union v The Greater Metropolitan Cemeteries Trust (2025). In this case, the employer, which runs several cemeteries in Victoria, sought a 7-day notice period for industrial action. The employer argued that protected action would severely disrupt religious and public health obligations in relation to burial services, especially for faith groups requiring immediate burial.

The FWC reluctantly refused the request, observing that the employer’s operational concerns, though significant, did not amount to the requisite exceptional circumstances. The FWC ruled the evidence did not demonstrate a situation well outside what might ordinarily occur because of industrial action in an essential community service. The availability of arrangements such as external labour, though inconvenient, weighed against finding the circumstances truly exceptional.

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