Australasian Meat Industry Employees Union v Big River Pork Pty Ltd

[2023] FWC 2339

[2023] FWC 2339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australasian Meat Industry Employees Union
v

Big River Pork Pty Ltd

(B2023/974)

DEPUTY PRESIDENT COLMAN MELBOURNE, 14 SEPTEMBER 2023

Proposed protected action ballot of employees of Big River Pork Pty Ltd

1. This decision concerns an application made on 12 September 2023 by the Australasian Meat Industry Employees Union (AMIEU) under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Big River Pork Pty Ltd (company). On 13 September 2023 the company advised the Commission that it objected to the application on the grounds that the AMIEU was not genuinely trying to reach agreement. Section 441 provides that, as far as practicable, an application of this kind must be determined within two working days after it is made. I listed the matter for hearing on 14 September 2023.

1. The application and supporting declaration state that the employees to be balloted are those who will be covered by a proposed enterprise agreement and who are represented by the AMIEU. The employees concerned are meat inspectors who are currently covered by the Big River Pork Pty Ltd and the Australasian Meat Industry Employees Union, South and Western Australian Branch – Meat Inspection Agreement 2020 (2020 Agreement). The nominal expiry date of the 2020 Agreement was 30 June 2023.  The proposed ballot agent is the Australian Electoral Commission (AEC). A draft order is attached to the application. The proposed ballot would ask employees whether they support seven forms of industrial action for the purposes of supporting claims made in respect of the proposed agreement.

1. The AMIEU’s declaration states that the ‘notification time’ for the agreement was 2 May 2023. On that date, the company advised employees that it was commencing bargaining for a new agreement and would issue a notice of employee representational rights. The declaration sets out steps taken by the AMIEU to try to reach an agreement with the company. These include attending various bargaining meetings with the company from early June 2023 to September 2023. The declaration notes that on 23 August 2023 the company put a proposed agreement to a vote of employees, but it was rejected. It states that the outstanding item in bargaining is the wage increase to be granted to employees, and that the union has provided some alternative options to the company.   

1. At the hearing earlier today, the company spoke to the substance of its objection, which was outlined in its correspondence to the Commission on 13 September 2023. The company submitted that since the commencement of bargaining in early May 2023, it had been required to deal with four different union officials, and that on each occasion that a new official had been assigned to the company, it had granted the official additional time after workers’ breaks to familiarise themselves with the bargaining agenda of workers and the company, all of which had come at a cost to the company. It submitted that changes that had occurred within the South Australian and Western Australian Branch of the union had led to delays and frustration and had disrupted negotiations for a new agreement.

1. The AMIEU did not dispute that there had been a number of officials of the union who had been involved in negotiations with the company, and that this had occurred because of structural changes in the union’s organisation, but contended that this did not call into question the genuineness of its efforts to reach an agreement with the company. I agree. It may have been inconvenient for the company to deal with several officials but this in no way suggests that the union has not been genuinely trying to reach an agreement.

1. The company further contended that the manner in which the AMIEU had advanced claims and responded to proposals indicated that it was not genuinely trying to reach agreement. The AMIEU had initially sought wage increases of 6% per annum. The company responded with an offer of 3%, 3%, 2.5% and 2.5%, and asked for a counteroffer. The AMIEU then responded with an even higher claim, seeking 7% increases, but when this was rejected by the company, it reverted to its initial claim of 6%, without making any counteroffer. The company later put a ‘best and final offer’ of 4% per year per annum for four years. This was submitted to a vote of employees, without union endorsement but not over its objection, however employees rejected it. The company said that it had been bargaining in good faith and had made changes to its wage offer, but that the AMIEU had still not made any counteroffers to the company’s wage proposals. The company had in effect been required to bid against itself.

1. I see nothing in this that casts doubt on the union’s claim that it has been genuinely trying to reach an agreement and that it continues to do so. The fact that a bargaining representative might decline to make a concession or propose a counteroffer does not suggest a lack of genuineness. A party is not required to make concessions or to agree to proposals by the other side. There is nothing unusual or ungenuine about the union’s move from a 6% wage claim to 7% and then back to 6%. In genuine pursuit of an agreement, bargaining participants may change their minds about claims and may also adopt various bargaining tactics.

1. The company contended that the union had been focused on ‘items that sit outside of the enterprise agreement and the negotiation process’, including claims that employees be given access to certain equipment and facilities. By this it seems the company meant that these particular issues were not on the agenda at the relevant time. They were however items that were capable of being included in an enterprise agreement. They were not matters outside the realm of bargaining, such as claims for non-work related matters. They do not affect the analysis of whether the union has been and is genuinely trying to reach an agreement with the employer.

1. The company submitted that if protected industrial action were to take place, it could cause production to cease and have serious financial implications for the company and the three hundred or so workers who are not union members. However, this is not a consideration that is relevant in an application for a protected action ballot order. Protected industrial action is by its nature intended to produce economic pressure in support of bargaining claims under the Act. The prospect of such action being effective is not suggestive of any lack of genuineness in the efforts of the union to reach an agreement with the company. There is no residual discretion for the Commission to decline to issue a protected action ballot order once it is satisfied that the statutory requirements have been met.

1. It is clear from the information before the Commission that the AMIEU has been, and is, genuinely trying to reach an agreement with the company for a new agreement. There have been meaningful discussions between the parties about terms and conditions for a new agreement. The wage increase is not yet agreed. But it is plain that all sides want to conclude an agreement and have been trying to reach one.

1. On the basis of the material before me, including the declaration and submissions of the AMIEU, and the submissions of the parties at the hearing, I am satisfied that there is a notification time in relation to the proposed agreement (see s 437(2A)), that a valid application has been made under s 437, and that the AMIEU has been, and is, genuinely trying to reach an agreement with the company, which is the employer of the employees who are to be balloted (see s 443(1)). I am also satisfied that the restriction in s 438 as to when applications may be made is not applicable, and that within 24 hours after making the application the AMIEU gave a copy of the application to the company and the proposed ballot agent (see s 440). As I am satisfied of these matters, I am required by s 443 to make a protected action ballot order in relation to the proposed agreement.

1. The ballot is to be conducted by the AEC. For the purposes of s 443(3)(c), I determine that the date by which voting will close is 26 October 2023, which is 30 working days from the date of the order I will make. This also establishes the ballot period for the purpose of s 448A(2) of the Act. The order is issued in PR766147.

1. A further order will be issued shortly under s 448A requiring the attendance of all bargaining representatives at a conciliation conference, together with directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Appearances:

B. Swan and E. Hennessy for the Australasian Meat Industry Employees Union
N. Sos for Big River Port Pty Ltd

Hearing details:

2023
Melbourne, Adelaide – by Microsoft teams
14 September

Printed by authority of the Commonwealth Government Printer

<PR766148>