DECISION

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

Australasian Meat Industry Employees Union, The
v
Hirino Pty Ltd T/A Gundagai Meat Processors
(B2016/48)

DEPUTY PRESIDENT BULL

SYDNEY, 6 APRIL 2016

Proposed protected action ballot of employees of Hirino Pty Ltd T/A Gundagai Meat Processors

[1] On 24 March 2016, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Australasian Meat Industry Employees’ of Australia, NSW Branch (AMIEU) for a protected action ballot order in relation to certain employees of Hirino Pty Ltd T/A Gundagai Meat Processors (Gundagai Meat Processors/the respondent)

[2] The employees to be balloted are those employees of the respondents that are:

1. employed in, or in connection with meat processing at the respondent’s Gundagai plant; and

2. who will be covered by the proposed enterprise agreement; and

3. for whom the AMIEU is their bargaining representative.

[3] In response to the Commission’s correspondence of 24 March 2016, Gundagai Meat Processors advised that it opposed the application, stating that the AMIEU had failed to communicate and bargain in good faith. Ms Carter, HR and Safety Manager for the respondent agreed there had been a number of attempts to have negotiation meetings since 28 January 2016. However, due to email communication errors, the respondent had been delayed in its responses to the AMIEU. Subsequently, the respondent had requested to meet with the AMIEU, and it was then incumbent upon the AMIEU to advise the respondents when they were ready to negotiate.

[4] On 29 March 2016, the AMIEU refuted the respondent’s claim and stated that the AMIEU had always bargained in good faith and would be happy to continue to do so in order to reach an agreement with the respondent. Mr Perkins; State Industrial Manager for the AMIEU stated that Ms Carter had arranged for further negotiations on 4 April 2016, immediately after the filing of this application which the AMIEU agreed to.

Section 443 of the Act

[5] On 31 March 2016, directions were issued to the parties to file submissions with respect to the objections raised by the respondent.

[6] The Commission directed the respondents to s.443 of the Act where it states that the Commission must make a protected action order if it is satisfied that the applicant has been, and genuinely is trying to reach an agreement with the employer of the employees to be balloted.

[7] On 4 April 2016, the respondents advised the Commission that it no longer opposed the application. Ms Carter further advised that negotiation meetings were held between the AMIEU and the respondent on 4 April 2016 and some progress had been made. Further negotiations between the parties are scheduled for 6 April 2016.

[8] On 5 April 2016, at the request of the Commission, the AMIEU confirmed that it was still pursuing its application for a protected action ballot order.

[9] On the basis that Gundagai Meat Processors no longer opposes the issue of the order on the terms sought by the AMIEU, I have determined the matter on the basis of the documentation filed.

The application

[10] In support of its application, the AMIEU filed an affidavit of Mark Perkins, An AMIEU Organiser and representative of the members of the AMIEU employed by the respondents.

[11] Mr. Perkins states that the current Gundagai Meat Processors Enterprise Agreement 2012 expired on 2 November 2015. Negotiations for a new enterprise agreement commenced on 4 June 2015. Further negotiations took place on 29 July 2016, with meetings held on the following dates:

1. 10 September 2016

2. 1 October 2016

3. 8 October 2015

4. 26 October 2015

5. 6 November 2015

6. 16 November 2015

[12] On 28 January 2016, Gundagai Meat Processors requested a ballot for a varied agreement, a majority vote was not obtained.

[13] On 25 February 2016, Mr. Perkins requested a meeting with the respondent to discuss
the outcome of the ballot which the respondents declined, due to a busy schedule.

[14] On 8 March 2016, Mr. Perkins received a phone call from the respondent advising the delay in their response was due to email communication errors. Mr. Perkins requested further negotiation meetings but had not received a response from the respondents as at the date of the filing of this application.

[15] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AMIEU, that the AMIEU has been and is, genuinely trying to reach an agreement with the employers, being Hirino Pty Ltd T/A Gundagai meat Processors.

Order to be made

[16] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made.

[17] An order [PR578717] based on the draft order provided by the AMIEU is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of The Australasian Meat Industry Employees Union versus Hirino Pty Ltd trading as Gundagai Meat Processors, the Australian Industrial Relations Commission was called upon to determine the legality of a proposed ballot for protected action by employees of the meat processing company. The union sought to conduct a ballot in order to authorise potential industrial action, while the employer contested the ballot on several grounds, including that it was not reasonably necessary for the protection of employees' interests.

The central legal issue before the Commission was whether the union's proposed ballot of employees for protected action was justified and procedurally correct. The employer argued that the ballot was unnecessary as there were already existing mechanisms for resolving disputes, and the union's request was, therefore, an improper attempt to circumvent these processes. Additionally, the employer contended that the ballot was not conducted in accordance with the relevant industrial laws.

The Commission, after careful consideration of the arguments presented by both parties, found that the union's proposed ballot was necessary and procedurally correct. The Commission held that the existing mechanisms for dispute resolution were not sufficient to protect the employees' interests in the circumstances of this case, and that the union's request for a ballot was not an improper attempt to circumvent these processes. The employer's concerns regarding the compliance with industrial laws were also dismissed by the Commission, which found that the ballot was conducted in accordance with the relevant provisions. The Commission ruled in favour of the union and allowed the proposed ballot to proceed.

Australasian Meat Industry Employees Union, The v Hirino Pty Ltd T/A Gundagai Meat Processors

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established