Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd T/A Coles Supermarket

[2015] FWC 1567

[2015] FWC 1567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australasian Meat Industry Employees Union, The
v
Coles Supermarkets Australia Pty Ltd T/A Coles Supermarket
(B2015/31)

COMMISSIONER BULL SYDNEY, 6 MARCH 2015

Proposed protected action ballot of employees employed in Coles Supermarket meat departments in the State of New South Wales and the Australian Capital Territory; application to extend minimum period of notice; whether exceptional circumstances exist.

[1] This is an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act) made by the Australasian Meat Industry Employees’ Union (the Union) employed by Coles Supermarkets Australia Pty Ltd T/A Coles Supermarket (Coles).

[2] The Union seeks to ballot all employees of the employer, employed in meat departments in the employer’s stores in the State of New South Wales and the Australian Capital Territory who are members of the Union and for whom the Union is their bargaining representative. The Union represents employees employed in the meat departments at Coles stores in NSW and the ACT.

[3] Following the filing of the application by the Union, Coles, through its legal representative advised that it wished to be heard on the terms of the ballot order sought by the Union. In essence, Coles sought an extension to the notice period a bargaining representative must provide before taking protected industrial action. Section 414(2) of the Act requires that written notice of any action to be taken must be provided at least 3 working days prior to the action occurring. The notice given must specify the nature of the action and the day on which it will start (s.414(6)). Where the Commission is satisfied that there are exceptional circumstances justifying the minimum period of notice being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days (s.443(5)).

[4] Directions were issued on 18 February, 2015 for the parties to provide any written material to support their positions. Subsequently, the Commission received written material from Coles submitting that there were exceptional circumstances justifying an extension of the minimum written notice requirement (pursuant to s.443(5) of the Act) and argued that 7 working days notice was reasonable. The Union submitted that no extension should be granted.

[5] The matter was listed for hearing on 3 March 2015 in Sydney. Mr Buckley appeared for the Union and Mr Gardner of counsel sought leave to appear for Coles. There was no objection from the Union to Mr Gardner’s representation and leave to appear was granted pursuant to s.596(2)(a) with the Commission being satisfied that the matter was of sufficient complexity and Mr Gardner’s representation would enable the matter to be dealt with more efficiently.

[6] The proposed protected industrial action to be taken is set out in the Union’s draft ballot order, the question(s) to be put are:

“For the purpose of supporting or advancing claims made in respect of the proposed enterprise agreement with your employer, do you authorise the following types of industrial action being taken, whether separately, concurrently or consecutively:

● An unlimited number of stoppages of the performance of work for 20 minutes?
● An unlimited number of stoppages of the performance of work for 2 hours?
● An unlimited number of stoppages of the performance of work for 4 hours?
● An unlimited number of stoppages of the performance of work for 10 hours?
● An indefinite ban on the performance of overtime prior to and/or after the ordinary span of hours?”

Legislative requirements

[7] Section 443 of the Act stipulates when the Commission must make a protected ballot order:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[8] In accordance with s.443(1)(a) I am satisfied that the application has been made in accordance with s.437.

Genuinely trying to reach agreement

[9] Section 443(1)(b) requires the Commission to be satisfied that the applicant (the Union) has been, and is, genuinely trying to reach an agreement with the employer.

[10] In support of its application for a protected action ballot order, the Union attached two statements made by its officials involved in negotiating the proposed enterprise agreement.

[11] The statements of Mr Grant Courtney, Secretary of the Newcastle and Northern New South Wales Branch of the Union and Mr Charlie Donzow, Secretary of the Union’s NSW branch both traversed the bargaining history between the parties. It was evident that despite more than 20 bargaining meetings between April 2014 and December 2014, the parties have been unable to reach agreement on a fundamental issue of principle. Coles wish to have a single national retail enterprise agreement which covers all store employees and has conducted negotiations with the Shop Distributive and Allied Employees Association for that purpose, whereas the Union were initially seeking a separate national meat agreement, and are now pursuing state based agreements that cover meat department employees. At a bargaining meeting held on 1 December 2014, an “in principle agreement” was reached between Coles and the SDA.

[12] Coles did not submit that the Union has not been genuinely trying to reach agreement.

[13] As noted by the majority in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia 1, the word “genuine” includes as defined by the Macquarie Dictionary as “being truly such; real”. To give full meaning to the expression genuinely trying to reach an agreement, the Commission must be satisfied that the means undertaken by the Union to reach an agreement are “truly such” as to reach an agreement; or are “real” efforts to reach an agreement. The words are directed to the authenticity of the Union’s efforts.

[14] In the Federal Full Court decision of J.J. Richards & Sons Pty Ltd v Fair Work Australia 2 Flick J stated:

“[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:
an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application.”

[15] Having considered the statements of both Union officials and applying the relevant authorities I am satisfied that the Union in its negotiations, including numerous face to face meetings with Coles, has been, and is, genuinely trying to reach an agreement.

Longer Period of Notice

[16] Coles initially pursued a notice period of seven working days on the basis that there were exceptional circumstances related to the nature of their business which justified the order of an extension of time, with particular reference to wastage of product. A witness statement of Mr Eric Daffy, the Meat Operations Manager was provided to demonstrate that without the additional notice, it is likely that an unspecified amount of meat product will potentially go to waste. This results from a combination of the Coles ordering processes, distant locations and peak periods such as school holidays and the Easter holiday period.

[17] Prior to the hearing, the Union provided written submissions opposing the notice period extension from 3 days to 7 days, however, a concession was made for a period of 5 days written notice to be provided over the Easter holiday period.

Legislation

[18] Section 414 of the Act provides, in relation to the required period of written notice:

"414 Notice requirements for industrial action

Notice requirements—employee claim action

(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.

(2) The period of notice must be at least:

(a) 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.”

[19] Section 443(5) provides that if the Commission 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 being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

“443(5) 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.”

[20] On the day of the hearing, the parties advised the Commission that an agreed position had been reached with each party having made concessions to their original positions.

[21] Despite the commendable agreement between the Union and Coles on the terms of the draft order incorporating an extended notice period, the Commission is still required to be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act. In this regard, the Commission relies on the submissions made by counsel for Coles, Mr Gardner and supported by Mr Buckley on behalf of the Union.

[22] It is necessary to examine, whether or not the circumstances demonstrate something exceptional. An inconvenient result or outcome to Coles will not be sufficient.

[23] Mr Gardnerreferred the Commission to the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (CEPU v Australia Post) 3 In that decision, Vice President Lawler, referring to the Decision of Rares J in Ho v Professional Services Review Committee No 2954, stated the following:

"[10]In this passage his Honour was concerned with the ordinary meaning of the expression "exceptional circumstances" and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). 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.

[11]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."

[24] The Vice President went on to state:

"[21]Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees' bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose…"

[25] Mr Gardner also referred to a number of cases where the Commission has increased the notification period, generally in relation to essential services; however extension orders have been granted in similar circumstances to the present application. 5

[26] It was submitted that, on the basis of the circumstances of supply and operation of Coles meat departments and the perishable nature of the product, failure to grant the agreed extended notification period would potentially result in significant wastage of product.

[27] Further, it was submitted that protected industrial action in the Easter holiday period justifies the additional agreed notice period. Further, it was submitted a public interest existed on the basis of the unnecessary slaughter of livestock. It was put that this damage was over and above the normal economic harm resulting from industrial action.
[28] I consider that in this case exceptional circumstances do exist to justify an extension of the 3 day written notice period which relate to concerns regarding a significant amount of spoilage and wastage of meat products that cannot be avoided within the standard 3 day notice period. The employees are involved in the management of a product with a limited shelf life which is required to be delivered and processed expediently. Taking the proposed industrial action listed in the draft ballot order at its fullest, the action is unlimited in the number of stoppages that may occur. As such, I accept that the agreed extension of the notice period and the circumstances in which that is to occur should be reflected in the ballot order sought, that being:

● Five days’ notice during the period between 30 March 2015 to 7 April 2015 (inclusive) for Coles ISM and Coles Butchery stores (but not Retail Ready Stores)

● Four day’s notice for any metropolitan stores where notice of action is given to Coles during the period from 30 March 2015 to 7 April 2015 (inclusive).

[29] Coles has requested that the statement of Mr Eric Daffy, the Meat Operations Manager be kept confidential for commercial reasons which the Union do not oppose. Mr Daffy’s statement will be marked confidential and not to be disclosed to outside parties.

[30] A separate Order [PR561120] for a protected action ballot will now issue.

COMMISSIONER

Appearances:

C Buckley for the Australasian Meat Industry Employees Union

C Gardner of Counsel, for Coles Supermarkets Australia Pty Ltd

Hearing details:

2015

Sydney

March 6.

 1   [2010] FWAFB 9963 at 57-58.

 2 [2012] FCAFC 53

 3   [2007] AIRC 848

 4 [2007] FCA 388 (27 March 2007)

 5   AMIU v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd [2012] FWA 2730 AMIEU v Coles Supermarkets Australia Pty Ltd[2014] FWC 8871

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