Australasian Meat Industry Employees Union, The v Norco Co-operative Limited

[2023] FWC 2937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australasian Meat Industry Employees Union, The
v

Norco Co-operative Limited

(B2023/1224)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 9 NOVEMBER 2023

Proposed protected action ballot of employees of Norco Co-operative Limited.

This is an application by the Australasian Meat Industry Employees Union (AMIEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Norco Co-Operative Limited (Norco or Employer).

On 9 November 2023, the Commission was advised that Norco, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Patrick Elliot on behalf of the AMIEU, setting out the steps taken by the AMIEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Norco, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 21 December 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR768128.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australasian Meat Industry Employees Union (AMIEU) has applied to the Fair Work Commission for a protected action ballot order under the Fair Work Act 2009 in relation to certain employees of Norco Co-operative Limited. The application was made under section 437 of the Act, seeking to allow the union to conduct a ballot to determine if the employees wish to engage in protected industrial action. Norco, the employer, did not object to the application, and the matter was decided on the papers without a hearing. The application was based on the union's declaration that it had been genuinely trying to reach an agreement with Norco and had fulfilled the notification time requirements under section 443(1) of the Act.

The key legal issue before the Commission was whether the union had satisfied the prerequisites for a protected action ballot as outlined in section 443(1) of the Act. This includes proving that there was a notification time in relation to the proposed agreement and that the union had genuinely attempted to reach an agreement with Norco. Given the declaration provided by Mr. Patrick Elliot on behalf of AMIEU and the lack of objection from Norco, the Deputy President found that the union had met these requirements.

In determining the matter, the Deputy President noted that Norco had effectively not opposed the application, and the union's declaration indicated it had genuinely attempted to reach an agreement. Therefore, the Deputy President concluded that the union had met the necessary criteria for a ballot. The Commission decided that the Australian Electoral Commission would conduct the ballot, with voting to close on 21 December 2023. This date was set to ensure a 30 working day period from the making of the order and to allow sufficient time for the Electoral Commission to conduct the ballot.

The Deputy President also set out the next steps in the process, including the assignment of the matter to another Member of the Commission for a compulsory conciliation conference under section 448A of the Act. This Member would issue an order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions would likely be issued to ensure the parties were ready to engage in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established