Australasian Meat Industry Employees Union, The v JBS Australia Pty Ltd
[2024] FWC 2639
•26 SEPTEMBER 2024
| [2024] FWC 2639 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.459—Protected action
Australasian Meat Industry Employees Union, The
v
JBS Australia Pty Ltd
(B2024/1241)
| COMMISSIONER ALLISON | MELBOURNE, 26 SEPTEMBER 2024 |
Application to extend the 30 day period in relation to B2024/970 – application granted
The Australasian Meat Industry Employees’ Union (AMIEU) represents employees engaged by JBS Australia Pty Ltd (JBS) in Longford, Tasmania. Employees at the JBS Longford site are covered by the JBS Australia Pty Limited – Longford Enterprise Agreement 2015[1] (the 2015 agreement) which expired on 6 September 2019. For around five years, the AMIEU has been asking JBS to negotiate a new enterprise agreement (proposed agreement).[2]
On 31 July 2024, the Fair Work Commission (FWC) made an order for the conduct of a protected action ballot[3] (the ballot) to determine whether AMIEU members at JBS Longford wished to authorise the taking of protected action in support of the proposed agreement. The ballot closed 22 August 2024. The ballot report declared that AMIEU members had authorised the taking of protected action.
The 30-day period within which industrial action must commence for it to remain authorised started on 22 August 2024.
During the 30-day period no industrial action occurred. The AMIEU and JBS continued to have discussions regarding the terms of a proposed agreement and/or the terms of a Memorandum of Understanding (MOU). On 12 September 2024 the AMIEU emailed JBS a draft MOU to consider. A meeting occurred on 13 September 2024 where the AMIEU sought to discuss the MOU, and JBS sought to discuss a number of matters they wanted in a proposed agreement.
No agreement was reached either in relation to the proposed enterprise agreement or an MOU.
On 20 September 2024, the AMIEU made an application, pursuant to s.459 of the Fair Work Act 2009, (the Act) to extend the 30-day period for protected action.[4]
JBS objects to the application on the basis that JBS alleges the AMIEU is not genuinely trying to reach agreement on a proposed agreement. Instead, JBS claims the AMIEU is now seeking an MOU.
This decision determines whether to grant the AMIEU’s application for an extension.
Legislation and Case Law
Section 459(1)(d) of the Act provides that industrial action authorised by a protected action ballot, must commence:
“(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3) -- during the extended period.”
Section 459(3) of the Act provides as follows:
“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and
(b) the period has not previously been extended.”
Section 459(3) provides the FWC with a discretion to extend the 30-day period subject to the requirements in (3)(a) and (3)(b). Asbury DP (as she was then) summarised some of the key principles applying to the discretion in s.459(3) in Australian Manufacturing Workers’ Union v Mulgrave Central Mill Company Limited as follows:[5]
“[9] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. The discretion is wide and is unconditioned by a statutory direction. Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.
[10] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; parties have participated in conciliation during the original 30 day period; or have refrained from taking industrial action and bargained constructively. It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.
(citations omitted)
Consideration
The threshold requirements for an application under s.459(3) have been met. The AMIEU, as an applicant for a protected action ballot order, has applied to extend the 30-day period, and the period has not previously been extended. I now turn to whether I should exercise my discretion to extend the period.
JBS objects to the application on the grounds that the AMIEU is no longer genuinely trying to reach agreement. JBS contends that the AMIEU, rather than seeking to bargain for a proposed agreement, now seeks an MOU between the parties. JBS submits that as the AMIEU is no longer genuinely trying to reach an agreement, any industrial action taken will not be protected industrial action pursuant to s.413(3).
The AMIEU submits that it has bargained in good faith and is genuinely trying to reach agreement. The AMIEU submits that while it has been open to discussing an MOU, it has never stopped pursuing a proposed agreement.
At the hearing on 25 September 2024 JBS relied on the witness evidence of Ms Rachael Pulford, HR Manager, to support its objection. The AMIEU called Mr Justin Smith, Branch Secretary.
The evidence before me establishes the following:
The AMIEU has been seeking a new enterprise agreement with JBS for about five years, since the 2015 agreement expired in September 2019.[6]
On 20 August 2024, the AMIEU sent JBS a revised log of claims for a proposed agreement.[7]
JBS preference until recently has been not to replace the 2015 enterprise agreement.[8]
On 5 September 2024, JBS sent the AMIEU an email which raised several claims for a proposed agreement. The 5 September 2024 email went on to state:
“We are open to discussing with you an option of not replacing the agreement and entering into a memorandum of understanding on what wage increases will be passed on next year and in 2026.”[9]
On 6 September 2024, the AMIEU sent JBS an email asking further questions about the agreement claims raised by JBS. The email also confirmed that the AMIEU was open to discussing an MOU instead of an agreement.
The AMIEU and JBS exchanged further emails regarding wage increases, conditions of employment and meeting times between 6 – 12 September 2024.
At 5:43PM on 12 September 2024, the AMIEU sent JBS a draft MOU. The draft MOU included proposed wage increases and acknowledged the 2015 enterprise agreement would continue to operate for a further two years.
At a meeting between the parties on 13 September 2024, there was discussion relating to the AMIEU draft MOU and JBS’s proposed agreement provisions.
The content of discussions around an MOU at the meeting on 13 September 2024 remains in dispute between the parties.
Ms Pulford gave evidence that, in her view, the AMIEU was no longer seeking to pursue a proposed agreement. In coming to this conclusion, she relied on the email correspondence from the AMIEU relating to an MOU and the discussion between the parties in the meeting on 13 September 2024. Ms Pulford believed that at the meeting, the AMIEU stated they were no longer interested in an agreement and she took that to mean that they no longer intended to bargain for a proposed agreement. She relied on minutes of the meeting she helped prepare which state:
“The [AMIEU] members are not interested in a new agreement and do not want to talk about Saturday work or grandfathering tally workers.”
Mr Smith gave evidence that at no stage did the AMIEU state they were withdrawing from bargaining to pursue an MOU exclusively. He stated that at the meeting the parties discussed both the proposed MOU and proposed agreement. He further claimed that if JBS did not agree to the draft MOU, the AMIEU would pursue a proposed agreement.
Having reviewed all the evidence before me, I am satisfied that the AMIEU continues to bargain for a proposed agreement while concurrently discussing a potential MOU with JBS.
This is not unusual behaviour in the course of bargaining. Parties will often explore different ways to meet particular claims in negotiations. Claims can be addressed through inclusion in a proposed agreement, but equally validly may be addressed through alternative vehicles such as an MOU, company policy or a letter of understanding.
Of course protected action can only be taken in support of a proposed agreement, not a proposed MOU. But there is nothing to stop parties discussing a range of ways to address different claims (including in an MOU) and if agreement is not reached, one or both parties continuing to pursue the claims in a proposed agreement. The fact that the parties are exploring pursuing an MOU is not mutually exclusive to the parties pursuing a proposed agreement.
In the current circumstances, where JBS has consistently said its preference is not to replace the enterprise agreement[10], and JBS has flagged the possibility of an MOU, it is quite reasonable for the AMIEU to seriously contemplate whether an MOU will meet their members’ needs. However, I am not persuaded that the fact the AMIEU explored this approach is conclusive of a finding that the AMIEU has ceased bargaining for a proposed enterprise agreement.
I reject JBS’ submission that AMIEU has stopped bargaining for a proposed agreement. There is no evidence before me that the AMIEU has specifically stated it is withdrawing from bargaining. Nor is there any evidence that the AMIEU will only pursue an MOU or not engage in bargaining with JBS. To the contrary, the following evidence supports the finding that the AMIEU continues to bargain for a proposed agreement:
· The fact that the AMIEU has sought an agreement with JBS for almost five years;
· Email correspondence between the AMIEU and JBS between 6-12 September discussing wage increases and other agreement claims raised by JBS.
· The meeting on 13 September 2024 where parties discussed both the MOU and JBS’ proposed agreement provisions
· Mr Smith’s witness evidence that if the draft MOU is rejected by JBS, the AMIEU will continue to pursue an agreement.
For the above reasons I am satisfied that the AMIEU continues to bargain for a proposed agreement, is genuinely trying to reach agreement and is bargaining in good faith. I note that the application was made before the expiry of the initial 30 days. I am also satisfied that an extension would be consistent with the objectives of the s.436 of the FW Act. Accordingly, I have decided I should exercise my discretion to extend the 30-day period.
Accordingly, pursuant to section 459(3) of the Act, I order that the 30-day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.
This order will operate on and from 26 September 2024.
COMMISSIONER
Appearances:
P Elliot, for the AMIEU
W Ash, for the Respondent
Hearing details:
2024
September 25
Video Hearing via Microsoft Teams
[1] AE415584.
[2] Exhibit R1 - Witness Statement of Rachael Pulford at 3.
[3] PR777724 in matter B2024/970.
[4] In accordance with s.459(3)
[5] [2016] FWC 4976, [9] – [10].
[6] Witness Statement of Rachael Pulford at 3.
[7] Annexure RP1 to Exhibit R1, Email from Justin Smith to William Ash dated 20 August 2024.
[8] Annexure RP1 to Exhibit R1, Email from William Ash to Justin Smith dated 23 August 2024.
[9] Annexure RP1 to Exhibit R1, email from William Ash to Justin Smith dated 5 September 2024.
[10] Annexure RP2 to Exhibit R1, Minutes of Meeting.
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