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[2026] FWC 912
General information, not legal advice.
Fair Work Commission
2026-03-20
Original judgment source is linked above.
s.437 - Application for a protected action ballot order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
Proposed protected action ballot of employees of NRMA Limited - application for extension of the period of written notice for industrial action granted
[2] On 18 March 2026, NRMA sent an email to the Commission stating that it wished to be heard on two matters:
(1) extending the time by which NRMA is to supply the person conducting the ballot with a list of its employees to five, as opposed to three, working days from the date of the order, with a consequential extension to the date by which voting in the ballot is to close to 13, as opposed to 10, working days from the date of the order; and
(2) inserting into the order an extended period of written notice of protected action of seven working days pursuant to section 443(5).
[3] The first of these matters was resolved between the parties. The AMWU agreed to the changes that NRMA sought.
[4] The parties could not reach agreement on the second matter. The AMWU maintained that the period of notice should remain at three working days in accordance with section 414(2)(a). As a result, I listed the matter for hearing on 19 March 2026.
[5] At the hearing, NRMA relied on a statement by Kristy Harder, NRMA's Senior Manager Metro and Regional Patrols. Ms Harder gave additional oral evidence at the hearing and was cross-examined.
[6] The AMWU called oral evidence from Aldo Mazzucco, who is employed by NRMA as a Patrol. (To avoid confusion, "Patrol" is a job title.) Mr Mazzucco was also cross-examined.
[7] After hearing the parties' evidence and submissions, I informed them that I had determined to grant NRMA's application for an extended notice period. I provided short oral reasons for my decision, having stated that I would set out my reasons in more detail in a written decision. I stated that I would issue a protected action ballot order in the form the AMWU sought, subject to the amendments that the parties had agreed and the insertion of a notice period of seven working days in respect of certain of the action described in the order.
[9] As foreshadowed to the parties, these are my reasons for issuing the order in its terms.
[10] Section 414 relevantly provides:
(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
(i) if subparagraph (ii) of this paragraph does not apply - 3 working days; or ...
(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph - that period of notice.
[11] Section 443(5) provides:
If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days... the protected action ballot order may specify a longer period of up to 7 working days.
(1) The right to otherwise give three working days' written notice of industrial action should not lightly be curtailed by the imposition of a longer period of notice.
"In summary, the expression 'exceptional circumstances' requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances 'justifying' the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441."
(3) The determination of whether the circumstances in a particular case are "exceptional" involves an evaluative judgement.
(4) A proper approach to the exercise of the Commission's discretion under section 443(5) involves three steps:
(a) The Commission Member must identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are exceptional circumstances.
(b) The Member must consider whether the identified exceptional circumstances "justify" a longer notice period. That is, the circumstances must show or prove that it is reasonable or necessary, or the circumstances warrant or provide good reason, to require a longer period of written notice. This also involves an evaluative judgement made on the basis of probative material.
(c) If the Member is satisfied there are exceptional circumstances justifying a longer period of notice, they must consider whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).
[13] The questions which the AMWU sought to put to the employees to be balloted, as set out in its application for a protected action ballot order, related to the following actions:
[14] The NRMA sought that the extended notice period apply in respect of the action described at 1 to 11, 13 and 14 (Relevant Industrial Action). The factual premise of its case was contained in Ms Harder's statement, who stated:
5. The PABO application relates to employees of NRMA employed as roadside Patrols. These employees provide emergency roadside assistance to people experiencing vehicle breakdowns or other vehicle-related emergencies.
(a) provides emergency roadside assistance to its membership base who are experiencing vehicle breakdowns or other vehicle-related emergencies;
(b) also responds to emergency calls from the general public or Fire and Police for assistance, for example where babies, pets or elderly persons are accidentally locked in vehicles; and
(c) is responsible for responding to calls made from any member of the public from the emergency phones which are placed on the side of major freeways.
7. NRMA members, and members of the public who utilise our services, are often:
(a) stopped on the side of busy or high-speed roads;
(b) in locations with limited visibility or safe stopping areas;
(c) in unsafe environments (for example in a dark place late at night);
(e) in immediate danger requiring a quick response - for example where babies or animals are accidentally locked in a hot car; and/or
8. A key purpose of our service is to reduce the time our members, and members of the public and emergency services, are exposed to these risks and to get them back on their journey quickly and safely.
9. We have approximately 260 employed Patrols in the roadside business.
10. If industrial action occurs with limited notice, NRMA's ability to respond promptly to service and emergency call-outs will be impacted.
11. Based on my knowledge and experience of the roadside business, a stoppage of work for any period will lead to:
(c) unsafe roadside conditions for an extended period; or
(d) danger to welfare and safety where it involves a person, baby or animal locked in a vehicle."
[15] Ms Harder went on to describe the contingency arrangements that NRMA would need to implement to address the safety concerns that she identified. She provided a timeline of the actions that NRMA would have to take, which she described as being the "minimum required steps", over a seven (or more) working day period. Ms Harder stated that the steps she described would apply in relation to all durations of stoppages of work identified in the AMWU's application "because they can be notified in an unlimited number of consecutive stoppages".
24. The above requirements will also apply to any partial work ban on sale of batteries. This is for reasons that include:
(a) The system is not able to be re-configured at short notice to remove battery jobs.
(b) Sometimes it is not known if a job involves a battery replacement until the Patrol attends the job.
(c) We will not necessarily know in advance if a particular Patrol is engaging in the ban.
(d) As a refusal to sell a customer a battery will likely leave them stranded, often on the side of the road, we will not accept partial performance of work from any employee who indicates they will participate in this ban, so it will have the same effect on resourcing as a stoppage of work or strike."
[17] The AMWU did not dispute the legitimacy of the safety concerns that Ms Harder identified. Rather, it contended that they could be addressed by having the necessary work performed through alternative means. It identified six sources from which NRMA could derive that support.
[18] First, the AMWU submitted that NRMA could engage contractors to perform the work that would otherwise be done by Patrols. There was significant disagreement as to the number of contractors on whom NRMA could call. Ms Harder gave oral evidence that NRMA has an arrangement with a third party to provide 70 vehicles. However, she stated that these form part of NRMA's existing workforce and are currently utilised. I accept that those contractors are not in the nature of a "reserve" resource that can be called on to cover for absences caused by Patrols engaging in Relevant Industrial Action.
[19] Mr Mazzucco gave evidence that Ms Harder told a recent bargaining meeting that NRMA had 160 to 180 contractors. Ms Harder stated that she could not recall making such a statement. Her oral evidence was to the effect that there were significantly fewer contractors. On the available evidence, there is an insufficient basis on which I could find that NRMA has an available contractor workforce that could provide coverage for its services in the event of Relevant Industrial Action.
[20] Second, the AMWU submitted that NRMA could rely on tow trucks. However, Ms Harder stated that while tow truck drivers may be able to assist in some cases, they will not always have the skillset to perform the work that would be required of a Patrol. She further stated that NRMA does not have an exclusive-hire arrangement with tow truck operators, with the result that their availability at short notice could not be assumed. Relevantly in this regard, Ms Harder stated that only 7% of patrol work requires a tow truck. Ms Harder's evidence on these matters was not meaningfully challenged by the AMWU.
[21] Third, the AMWU placed significant reliance on a safety protocol described as "tow to safety". In short, that relates to circumstances in which a vehicle requiring assistance is in a location where it would not be safe for a Patrol to render assistance. In some instances, the decision is made to arrange for a tow truck to move the vehicle to a safe location to enable the necessary services to be provided. The AMWU contended that the circumstances that Ms Harder described in her statement were "tow to safety" situations. However, I make the following observations:
(1) Ms Harder gave uncontroverted evidence that not all instances involving risks to safety, including some high-risk situations, will result in a tow to safety call being made.
(2) There was also no challenge to Ms Harder's evidence that towing, which I took to include tow to safety situations, is required in only 7% of circumstances. Mr Mazzucco could only say that it "happens a lot" or "frequently".
(3) More significantly, a tow to safety situation does not obviate the need for a Patrol to attend. Once the vehicle is towed to a safe location, a Patrol will be required to render assistance. Further in this regard, Mr Mazzucco stated that in at least some cases, it is the Patrol who makes the tow to safety call. It follows that the tow to safety protocol is not a substitute for Patrols.
[22] Fourth, the AMWU identified that in some cases the Roads and Traffic Authority will arrange to move a vehicle to a safe location. However, on its evidence this is likely only to occur on roads under the supervision or control of the Traffic Management Centre. Mr Mazzucco identified in particular the M5 and M7 in Sydney and other "high speed roads". But again, the fact that the RTA might arrange for a vehicle to be moved is not in substitution for a Patrol providing the required roadside assistance afterwards.
[23] Fifth, the AMWU contended that there are 30 to 40 non-union employees who would not be involved in taking any industrial action. It did not, however, explain how those employees could be expected to cover for the up to 220 to 230 of their colleagues who may be taking Relevant Industrial Action.
[24] Sixth, the AMWU stated that emergency services, such as the police or fire services, would be available to attend in critical situations, such as when a child is locked in a car. Mr Mazzucco gave evidence of instances where the police and/or fire brigade had arrived in such circumstances before him. But this would at best be a partial response to the concerns Ms Harder identified. There is nothing to suggest that the attendance of emergency services would be expected in anything other than the minority of cases. In any event, NRMA has no control over whether they would so attend.
[25] For these reasons, I do not accept the AMWU's contention that there are resources available to NRMA that could be called on to cover for Patrols engaging in Relevant Industrial Action. To the extent that some alternative resources are available, I am not satisfied that they would be sufficient to address the safety and related concerns that NRMA raised. It is certainly not clear that any external resources could be mobilised in three working days.
[26] The AMWU next submitted that the safety concerns on which NRMA relied had to be viewed in the context that there was previously a reduction in NRMA's workforce which had not produced any adverse safety outcomes. It relied in this regard on evidence from Mr Mazzucco regarding a "leave burn" in 2017. I understood this to refer to a situation in which NRMA directed its employees to take leave in order to reduce their leave balances. Mr Mazzucco recalled that at the time the number of Patrols in his area reduced from eight to three. He did not recall any safety concerns arising at the time.
[27] NRMA submitted that Mr Mazzucco's evidence regarding the "leave burn" was not relevant. It also noted that he could only speak from his own experience, and not speak for all of NRMA's operations.
[28] I do not place any weight on Mr Mazzucco's evidence regarding the "leave burn". The AMWU did not establish that the events of 2017 were comparable to those that would arise in the event that the Relevant Industrial Action was taken. But more importantly, the absence of adverse safety outcomes is not evidence of the absence of safety risks. To suggest otherwise would be to ignore decades of developments in the field of workplace health and safety.
[29] Ms Harder's evidence regarding the contingency arrangements that NRMA would need to implement in the event of industrial action was not challenged. Nor was her evidence as to the time it would take for NRMA to implement those arrangements. Her evidence was that it would require at least seven working days to do so. There is no basis on which I could conclude that this work could be done in fewer days, and certainly not three working days.
[30] For these reasons, I was satisfied that exceptional circumstances exist and that in respect of the Relevant Industrial Action they justify a longer notice period than that in section 414(2)(a). I was also satisfied that it was appropriate that I exercise the discretion that section 443(5) confers on me to extend the notice period required in relation to the Relevant Industrial Action to seven working days.
[31] The AMWU's application was accompanied by a declaration of Raymund Shortill, an AMWU Organiser, setting out the steps taken by the AMWU in bargaining with NRMA and how the AMWU contended that it has been, and is, genuinely trying to reach agreement with NRMA. Having regard to that declaration and the other material before me, I was satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in section 443(1) had been met.
[32] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under section 468A and is authorised to conduct the ballot.
[33] For the purposes of section 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 10 April 2026. This also establishes the ballot period for the purpose of section 448A(2) of the Act.
[34] This matter will be assigned to another Member of the Commission to conduct the section 448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
[1] In this decision, unless otherwise stated, all references to legislative provisions are to provisions of the Fair Work Act.
[3] [2018] FWCFB 4011 at [21]- [25]
[4] [2007] AIRC 848 at [10]- [11]
Printed by authority of the Commonwealth Government Printer
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
NRMA Limited [2026] FWC 912