Application by The Australasian Meat Industry Employees Union

[2020] FWC 1772

[2020] FWC 1772

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 229 - Application for a bargaining order

Application by The Australasian Meat Industry Employees Union
(B2020/180)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 2 APRIL 2020

Application for a bargaining order

[1] On 20 March 2020 the Australasian Meat Industry Employees Union (AMIEU or the Union) applied to the Commission for a bargaining order under section 229 of the Fair Work Act 2009 (FW Act) concerning bargaining for a new enterprise agreement at the Thomas Foods Murray Bridge meat processing facility operated by Thomas Foods International Murray Bridge Pty Ltd (Thomas Foods or the employer).

[2] The Union’s application as originally filed sought orders that certain information be provided to the Union by the employer comparing work and classifications currently performed with that in a proposed agreement. 1 In light of correspondence subsequently sent by the employer to the Union,2 on 30 March 2020 the Union amended3 the orders sought to the following:

“That the vote of the employees of the Respondent scheduled for 2nd and 3rd April 2020 be postponed to a date to be fixed by agreement between the Applicant and the Respondent, and in default of agreement as is ordered by the Fair Work Commission.”

[3] I listed the Union’s application for conference, by telephone, on 1 April 2020. At that time, the Union indicated that it sought orders to postpone a ballot scheduled to be conducted from 12 noon the following day. The employer opposed such orders and, through its legal representative, was briefed to advance grounds in opposition. Given that private conciliation had the capacity to delay arbitration and thus prejudice the Union’s capacity to obtain orders in advance of the ballot, the matter was fully argued before me.

[4] I grant the Union permission to amend its application with respect to the relief sought. There is no prejudice arising from that course; proceedings were conducted on that basis.

[5] By consent, I granted Thomas Foods permission to be legally represented having regard to efficiency and fairness.

[6] The Union was represented by its legally qualified National Industrial Officer (Mr O’Loughlin) and South Australian and Western Australian Branch Secretary (Ms Anderson).

[7] The company was represented by counsel (Mr Herbert) and instructing solicitor (Mr Foley) together with six officers.

[8] Also appearing in their own right were four employee bargaining representatives: Mr Karamaz, Mr Hodges, Mr Cockburn and Mr Baker.

[9] For reasons that are self-evident given the orders sought, I reserved my decision until the morning of 2 April 2020, which I now deliver.

Facts

[10] Although no Statement of Agreed Facts is before me, as the proceeding transpired it became evident that the factual narrative is not contested.

[11] There relevant facts are as follows.

[12] Thomas Foods operates meat processing facilities at various locations in South Australia (and to a lesser extent nationally). It is based at Murray Bridge in regional South Australia.

[13] The Murray Bridge processing operations are governed by the T & R Murray Bridge Pty Ltd Food Process Worker Enterprise Agreement 2010 (the existing agreement).

[14] The existing agreement is some five and a half years past its nominal expiry date. 4 It continues to operate by force of law. The AMIEU is covered by the Agreement.

[15] The existing agreement covers meat processing workers employed at the Murray Bridge facility (not elsewhere). The existing agreement includes approximately 45 occupational levels (classifications) across what were ten areas of operation.

[16] The AMIEU and employees, through a bargaining committee, has been negotiating for a new agreement with Thomas Foods for a number of years including prior to 2018.

[17] Bargaining (and not just bargaining, but operations) was interrupted by a catastrophic fire that engulfed the Murray Bridge facility on 3 January 2018. At the time of the fire, the employer employed in excess of 1,000 persons under the existing agreement (that is, in meat processing at Murray Bridge).

[18] Only limited facilities at Murray Bridge survived the fire. For relevant purposes, approximately 44 persons remain employed at Murray Bridge. Of those 44, only approximately 30 work in meat processing under the terms of the existing agreement. The remaining hundreds of meat processing employees were largely re-employed in other locations where they are employed under separate industrial instruments. They are no longer employed under the existing agreement as they do not work at Murray Bridge.

[19] Thomas Foods intends to build new meat processing facilities at Murray Bridge in the wake of the fire. Subject to final planning approvals (which are not yet fully in place), the new facility is intended to be located in Murray Bridge at a geographically separate site some eight kilometres from the existing (fire-damaged) facility.

[20] The most recent bargaining meetings for a new agreement were held on 27 February and 5 March 2020.

[21] Following the 5 March 2020 meeting the employer decided (with the support of the employee bargaining representatives but not the Union) to put a proposed agreement to a ballot, which was to be conducted as an attendance ballot by the Australian Electoral Commission (AEC) and scheduled for 26 and 27 March 2020.

[22] The proposed agreement 5 would apply to all meat processing employees employed by Thomas Food International Meat Processing Pty Ltd6 employed “at the TFI Murray Bridge meat processing establishment”.7 Currently there are approximately 30 such employees. The proposed agreement includes a broad number of classifications of a similar (but not identical nature) to the existing agreement: approximately 51 occupational levels across ten areas of operation.

[23] Thomas Foods intend the proposed agreement to apply to its future operations at Murray Bridge whether they are conducted at the existing fire damaged site on the current limited basis by a small number of employees (30), or conducted at a future time at the intended re-located site in a facility employing a large and diverse workforce comparable to pre-fire dimensions (in excess of 1,000).

[24] Due to the subsequent declaration of COVID-19 as a pandemic, the AEC advised Thomas Foods that, as a matter of policy, it would not be conducting attendance ballots. In light of that advice, Thomas Foods postponed the ballot dates from 26 and 27 March to 2 and 3 April 2020 with the ballot to still be conducted as an attendance ballot but, rather than by the AEC, would be overseen by company, employee and Union representatives and conducted according to protocols applicable to social distancing and the like as required by health authorities in light of the COVID-19 pandemic.

[25] It is this proposed ballot, to be conducted between 12 noon and 3pm on 2 April 2020 and between 12 noon and 4pm on 3 April 2020 which is the subject of the Union’s application.

Submissions

[26] The AMIEU contend that the proposed ballot should be delayed for a number of weeks to enable a further bargaining meeting (and perhaps further proceedings in the Commission) to deal with the Union’s concerns, which include:

•  That the proposed agreement includes a large number of levels and classifications which are not worked by the 30 employees eligible to vote: and

•  That an agreement voted up by a majority of the 30 employees eligible to vote will disenfranchise the much larger number of employees who may be employed under the agreement at a future date at the re-located site.

[27] The Union says that whilst the employer has responded to some of its concerns, it has not responded appropriately to this fundamental concern.

[28] The Union submits that Thomas Foods has manipulated the bargaining process by pushing through an agreement to be voted on by a small number of employees that may not reflect the intentions of its future manufacturing workforce. In this respect the Union asserts that Thomas Foods has not acted in good faith. It also says that the employer’s decision to move to a vote of 30 persons who do not work in many of the classifications of the proposed agreement means that the group of employees has not been “fairly chosen”, within the meaning of the FW Act. 8

[29] The Union also submits that the employer wrongly asserts that the proposed agreement would lawfully apply at re-located Murray Bridge site. It contends that the relocated site requires a greenfields agreement to be made, not an enterprise agreement voted on by the few persons employed at the current facility.

[30] The Union submits there is no prejudice in a delay as the existing agreement continues to have operation by force of law.

[31] Thomas Foods says that the proposed agreement has been negotiated through the bargaining committee, and that whilst the January 2018 fire resulted in an interruption to bargaining and then a substantial reduction in the processing workforce at Murray Bridge, the remaining 30 employees are entitled to vote upon and secure a new agreement that replaces one made some ten years ago.

[32] The employer submits there is no legal impediment to an agreement being made by a small number of employees nor subsequently, as operations expand, covering a larger group. The employer further submits that the bargaining process and the proposed ballot have been conducted in accordance with the FW Act, and that a delay to bargaining would be an unreasonable intervention contrary to the statutory bargaining scheme and may even contravene section 255 which prevents the Commission from making certain orders.

[33] Thomas Foods flatly rejects the proposition that it has not bargained in good faith. It says that the small number of processing employees left on-site and who are eligible to vote is a consequence of circumstances well beyond its control (the fire) and not an act of manipulation. It says that the group of employees eligible to vote has been fairly chosen because it includes every employee at the existing Murray Bridge facility who is currently employed under the existing agreement.

[34] The employer says that it has been transparent about its intention to rebuild a manufacturing facility at a re-located site in Murray Bridge, and also transparent, including to the Union at bargaining meetings, about its intention to conduct the proposed ballot. It rejects the Union’s assertion that the re-located site would require a greenfields agreement, arguing that the scope of the proposed agreement would cover any processing operations in the geographic area of Murray Bridge.

[35] Finally, the employer says that there would be no useful purpose served by a delay.

[36] The four employee bargaining representatives each made an individual submission supporting conducting the ballot on 2 and 3 April. Each opposed a further postponement or delay.

Consideration

[37] Section 229 provides as follows:

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Multi‑enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi‑enterprise agreement unless a low‑paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non‑compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

[38] The power to make orders under section 229 is a discretionary power, but a discretion guided by statute; in particular the prerequisites in subsections (2) and (3) and by each of subsections (a), (b) and (c) of section 230(1) being made out.

[39] I am satisfied that the AMIEU has met the formal requirements of section 229 so as to have an application lawfully before me. It is a bargaining representative (ss (1)), it is not a proposed multi-enterprise agreement (ss (2)), the application has been made well after the agreement’s nominal expiry date and after the employer has requested that the agreement be voted upon (ss (3)), and the Union considers that the employer has not appropriately responded to its concerns (ss(4)).

[40] Section 230 provides as follows:

230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) The FWC must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a low‑paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) The FWC must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

[41] I am satisfied that section 230(2) is made out. The employer has agreed to bargain or initiated bargaining (ss (2)(a)).

[42] However, for the reasons that follow, I do not consider that the Union has made out subsections (b) and (c) of section 230(1).

[43] Subsection (b) of section 230(1) is not made out because I am not satisfied that either of the requirements in section 230(3)(a) are satisfied. In particular I am not satisfied that the employer is not meeting or has not met the good faith bargaining requirements of the FW Act or that bargaining is not proceeding efficiently or fairly because of the multiple bargaining representatives involved.

[44] Bargaining meetings have been held over a considerable period of time, the Union and other employee representatives are members of the bargaining committee, and the employer has responded to positions and concerns advanced even though the Union considers that its concern concerning a vote by the current 30 employees has not been appropriately addressed.

[45] Essentially, the Union’s contention that the employer is not bargaining in good faith comes down to the same grounds it advances under section 230(1)(c). It says that the employer has manipulated the bargaining process and that it is “reasonable in all of the circumstances” to make an order postponing the ballot because a vote by a group of 30 is an unreasonably small number having regard to the limited coverage those 30 have against the classifications to be voted upon, and the potential for the ballot to disenfranchise a much larger future workforce at Murray Bridge.

[46] I give weight to the Union’s concerns. It, like the employer, envisages a future time when a large meat processing workforce is relocated back to Murray Bridge working in a newly built facility. It believes that, in the interests of fairness, it is that future workforce encompassing the full range of classifications in the proposed agreement which should be voting on the proposed agreement. Given that it was a large workforce encompassing the full range of classifications in the existing agreement which voted on the existing agreement in 2010, the Union’s concern is understandable particularly in that historical context.

[47] However, there are six reasons why I am not satisfied that it is “reasonable in all of the circumstances” to make an order postponing the ballot within the meaning of section 230(1)(c).

[48] Firstly, the proposal to go to ballot on the proposed agreement has been discussed by the bargaining committee. I was informed, without demur, that this occurred on 27 February 2020 and 5 March 2020. The intention to proceed to ballot on the proposed agreement has not been hidden from the Union.

[49] Secondly, all persons employed under the existing agreement will be eligible to vote on the proposed agreement.

[50] Thirdly, the reason why the number of employees eligible to vote on the proposed agreement is small compared to the number who were employed under the existing agreement prior to the fire in January 2018 is the product of a circumstance beyond the employer’s control – that is, the fire reduced the size of the workforce capable of being employed at Murray Bridge. It is not, on the material before me, the product of manipulation by the employer. In the absence of evidence of bad faith or an attempt to subvert the legislative scheme, the FW Act provides no legal impediment to an agreement being voted upon by a small number of employees in circumstances where a larger group of employees (covering classifications not covered by the voting group) may be employed at a future time. 9 This is a factually distinguishable circumstance to that in One Key10.

[51] Fourthly, whilst I give weight to the fact that the Union as a collective employee association seeks a postponement of the ballot, it is not just the employer who seeks the conduct of the ballot. Four employee bargaining representatives independently support that course.

[52] Fifthly, there is low utility in a postponement. A bargaining meeting to further discuss the Unions concerns about the voting group is likely to ventilate the very issues that have been ventilated in these proceedings and on which the Union seeks a determination from the Commission. It is only a postponement of many months if not years until a new facility is built and a large workforce reassembled in Murray Bridge before the Union’s objective of having a large processing workforce voting on the agreement could be truly achieved. Such a lengthy delay conditional on uncertain future events would unreasonably prejudice the existing bargaining process and the desire of the employer and the existing workforce to secure a new agreement.

[53] Sixthly, a vote on the proposed agreement, even were it to be a majority vote, does not give the agreement force and effect. The FW Act requires the approval of the Commission before an agreement has the operation contemplated by statute. Proceedings for approval provide that a bargaining representative, including the Union (if it so wishes) may oppose approval and advance a number of the arguments advanced in these proceedings: for example, that the employer had not acted in good faith, or that the group of employees to be covered has not been “fairly chosen”, or that the relevant employees did not “genuinely agree”, or that the legislative scheme would be “subverted” 11 if the agreement was approved.

[54] The Union’s submission that the proposed agreement’s coverage does not (according to its language) or cannot (according to law) apply to a re-located site in Murray Bridge is not a basis for making the order sought. The terms of a proposed agreement and a foreshadowed dispute about its application to a yet to be realised future site is not a basis to postpone a proposed ballot. There are persons currently employed who would be employed under the proposed agreement were it voted-up and approved by the Commission. It is not a proposed vote to cover a hypothetical workforce. The proposed agreement’s operation is not dependent on a future contingent event such as a relocation of facilities or employment of yet to be employed persons. Whether a yet to be built relocated facility requires the application of the greenfields provisions of the FW Act is a speculative proposition that does not bear upon the merits or otherwise of this postponement application.

[55] For the sake of completeness, I add that I do not accept the employer’s submission that the orders sought by the Union would contravene section 255(1) of the FW Act. An order postponing this ballot would not have the effect of “requiring” particular content to be included (or not included) in the agreement (ss (a)). 12 Nor would it have the effect of requiring employees to approve the agreement (ss (b)).

[56] I note that no submissions were put to me that the proposed ballot would contravene section 181 of the FW Act. I am satisfied that the employer has met the requirements set out in section 181.

[57] I have considered whether this decision should determine the matter on an interim basis only and leave the Union’s application adjourned before the Commission. I have decided against this course for three reasons. Firstly, no party suggested I do so. Secondly, the orders sought on the amended application have a temporal utility: that is, if they are to be made, they need to be made in advance of the ballot intended to be conducted from 12 noon today. Thirdly, should the bargaining process continue (for example, if the ballot was not successful) there is no legal impediment to any bargaining representative (including the Union) filing fresh proceedings.

[58] For these reasons, the AMIEU’s application for a bargaining order is dismissed. Whilst the Union’s concerns are understandable particularly in an historical context, I do not consider it appropriate or reasonable to postpone the ballot scheduled to be conducted today and tomorrow 2 and 3 April 2020 from 12 noon. An order 13 giving effect to this decision will be issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

Mr M O’Loughlin with Ms S Anderson (The Australasian Meat Industry Employees Union)

Mr A Herbert of Counsel with Mr M Foley (Norman Waterhouse Lawyers) for the respondent.

Mr W Hodges, Mr G Cockburn, Mr E Baker and Mr A Karamaz in their own right.

Hearing details:

2020.
Adelaide (by telephone conference):
April 1.

Printed by authority of the Commonwealth Government Printer

<PR718021>

 1   Application dated 13 March 2020 paragraph 2.5

 2   Letters 13 March 2020 (from Thomas Foods) and 27 March 2020 (from Norman Waterhouse on behalf of Thomas Foods)

 3   Email 30 March 2020

 4   Approved 1 September 2010 to operate from 8 September 2010 with a nominal expiry date of 7 September 2014: [2010] FWAA 5481 per Hampton C

 5   Annexure A to Statement of Sharra-Leagh Anderson

 6   Thomas Food International Meat Processing Pty Ltd is the successor to T & R Murray Bridge Pty Ltd which is the employer covered by the existing agreement

 7   Proposed clause 3.1

 8   Section 186(3)

 9   ALDI Foods Pty Ltd v SDAEA [2017] HCA 53 at [82]; see also Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297

 10   Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266

 11   Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [126]

 12   National Union of Workers v CHEP Australia[2009] FWA 202 at [43]

 13   PR718022