Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd

[2015] FWC 2383

[2015] FWC 2383

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Australasian Meat Industry Employees Union, The
v
Coles Supermarkets Australia Pty Ltd
(B2015/381)

COMMISSIONER WILLIAMS PERTH, 7 APRIL 2015

Proposed protected action ballot of employees of Coles Supermarkets Australia Pty Ltd.

[1] This decision concerns an application for a protected action ballot order made under section 437 of the Fair Work Act 2009 (the Act) by The Australasian Meat Industry Employees Union (the applicant or the union) with respect to employees employed by Coles Supermarkets Australia Pty Ltd (the respondent or Coles).

[2] At the conclusion of the hearing I advised that I was satisfied that a protected action ballot order should be made and would in due course provide reasons for decision directed at the application by Coles for the Commission to find that there were exceptional circumstances justifying the period of written notice referred to in section 414 (2) (a) of the Act being longer than the three working days specified.

The ballot order application

[3] The applicant provided statements from Mr Graham Smith the Federal Secretary of the union and Ms Sharra Anderson the SA and WA Branch Secretary of the union in support of the application. Coles did not seek to cross-examine these witnesses. I accept the evidence of these witnesses in full.

[4] Considering the evidence and submissions by the union I am satisfied that an application has been made under section 437 of the Act and I am separately satisfied that the union has been, and is, genuinely trying to reach an agreement with Coles. I am further satisfied that the application meets the requirements of section 438 of the Act and that the application was provided to the respondent as required by section 440 of the Act.

[5] Given the above, section 443 of the Act provides that the Commission must make the protected action ballot order in relation to the proposed enterprise agreement and an order to that effect will be issued in conjunction with this decision.

The notice period under section 414 (2) (a)

[6] Coles has made submissions in support of an application that the Commission exercise its discretion to increase the 414 (2) (a) notice period from three working days to seven working days.

[7] Coles called Mr Eric Daffy who is the respondent’s Meat Operations Manager to give evidence. Mr Daffy was cross-examined by the union. I accept Mr Daffy’s evidence which is supportive of the arguments Coles have made for an extended period of notice to be given. A section 594 confidentiality order has been made covering Mr Daffy’s full evidence.

[8] Considering the evidence of Mr Daffy I find that:

• It is not possible for Coles to reduce livestock slaughtering in response to industrial action to prevent slaughtering animals whose meat will not be consumed because the slaughter process is conducted on a three-month forecasted plan.



• In response to industrial action, meat orders from stores will in all likelihood fall below the forecast demand and consequently a surplus or backlog of meat product will build up in the WA distribution centre. This meat may not be sold and so is wasted.



• In Victoria, which has been experiencing industrial action since January 2015, there are options to reduce the wastage of product that builds up in the Victorian distribution centre but these options are not available in WA.



• Even in Victoria’s case where steps can be taken to reduce it there is still a degree of wastage and Coles also incurs additional cost and administrative burden to reduce the wastage.



• Transporting the surplus meat product caused by industrial action from WA to Victoria to minimise local wastage will take a minimum of three or four days and this transport time directly reduces the time available for the product to be cut and sold due to its fixed shelf life.



• Additional notice of industrial action provides extra potential days for production and sale of the surplus WA meat product which will reduce wastage.

[9] In support of its application Coles argues that fresh meat is highly perishable and with only three working days notice of industrial action it will have virtually no ability to take steps to reduce the risk of waste at five regional stores in the north-west of WA and at the Bentley centre metropolitan store.

[10] Separately there is a general issue across Coles’ operations in WA which is that when due to industrial action orders from Coles respective stores fall below that anticipated by its forecasts products will remain unordered and consequently will build up in the distribution centre. Peculiar to WA is the fact that Coles’ capacity to minimise waste in this situation is limited. The only option in WA for Coles to reduce the amount of waste is to transport product from WA to Victoria. The evidence is the product can be freighted by train from WA to Victoria which will take three days but that the train only operates from WA on Tuesdays or Fridays or alternatively the product can be transported by road however this takes longer being four days however road transport can be arranged every day.

[11] It is submitted that there are exceptional circumstances in the case of Coles’ WA operations. The meat product has a limited shelf life the origin of which is livestock which are slaughtered for consumption. Because the meat is a fresh product a short production time is critical and a failure to have the meat products supplied, delivered and processed expediently will in cases of extended industrial action potentially cause livestock to be needlessly slaughtered in that the product goes to waste and is not consumed. The nature of Coles’ supply chain and distribution arrangements in WA means the three working day notice period is insufficient to reduce the risk of wastage in five regional stores and the Bentley centre store and further the time required to potentially transport product surpluses that would develop in the WA distribution centre to other states directly reduces the remaining shelf life of the product which impacts on the amount of wastage that can be reduced.

[12] In response the union argues that there are a number of administrative actions Coles can take to avoid wastage such as adjusting its ordering procedures in the face of potential industrial action. Separately the union argues that much of Coles’ argument is based on assumptions about average shelf life of the meat product.

Consideration

[13] The evidence in my view does demonstrate that the circumstances here which are peculiar to Coles’ operations in WA are unusual and I am satisfied do meet the requirements of being exceptional circumstances.

[14] Given there are exceptional circumstances I am satisfied that this is an appropriate case for the Commission to exercise its discretion and require that an additional number of days notice be given before protected industrial action is taken. I however do not accept Coles’ view that the circumstances here justify seven working days notice being required. An appropriate period of notice given the particular circumstances of this case would be five working days and I will include this in the order to be issued.

COMMISSIONER

Appearances:

C Buckley on behalf of the applicant.

C Gardner of Seyfarth Shaw Australia for the respondent.

Hearing details:

2015.

Perth, Brisbane and Adelaide (video hearing)

March 31.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR562828>