Australasian Meat Industry Employees Union v Big River Pork Pty Ltd

[2023] FWC 2374

[2023] FWC 2374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.418—Industrial action

Australasian Meat Industry Employees Union
v

Big River Pork Pty Ltd

(C2023/5535)

DEPUTY PRESIDENT COLMAN MELBOURNE, 14 SEPTEMBER 2023

Application for order that threatened industrial action not occur

1. The Australasian Meat Industry Employees Union (AMIEU) has made an application under s 418 of the Fair Work Act 2009 (Act) asking the Commission to order that threatened industrial action by Big River Pork Pty Ltd (company) not occur. The application was sent by email to my chambers this morning ahead of a scheduled hearing of the AMIEU’s application for a protected action ballot order (PABO) under s 437, to which the company had objected. At today’s hearing, after having determined that I was required to issue a PABO, I heard from the AMIEU in relation to its application under s 418.

1. The focus of the union’s concern was correspondence sent by the company to the Commission on 13 September 2023 outlining its objection to the AMIEU’s application under s 437. The company stated that if accredited meat inspectors took protected industrial action, the processing of the company’s product would cease, which would mean that all other factory operations would be affected. It said that this would result in the cessation of work undertaken by some 300 other employees and a consequential financial strain for those workers.

1. The AMIEU contended that, by this correspondence, the company had threatened to take unprotected industrial action against employees in the form of a lockout. It said that the company had made the threat in an attempt to stop its members from taking protected action, and that it had done so before any protected action had been taken by employees and was therefore not responsive to any such action. It said that the threatened lockout was unprotected action and that the Commission should issue an order that it not occur.

1. I declined to grant the order sought by the AMIEU. Section 418 states that, if it appears to the Commission that unprotected industrial action by one or more employees or employers is happening, or is threatened, impending or probable, the Commission must make an order that the industrial action stop or not occur. It did not appear to me that this was the case. The company’s letter of 13 September 2023 did not threaten a lockout of employees. Instead, it foreshadowed a possible standdown of employees for whom there might not be useful work in the event that protected industrial action stops production.

1. A lockout is one of the species of industrial action in s 19. Section 19(3) states that an employer locks out employees from their employment if the employer ‘prevents the employees from performing work under their contracts of employment’ without terminating those contracts. The company did not threaten to prevent employees from working under their contracts. Rather, it noted that the protected action of inspectors could stop production and that this threatened to affect the availability of work for others.

1. As it did not appear to me that the company had threatened to take unprotected industrial action, or that such action was impending or probable, there was no basis for the Commission to make an order under s 418.

DEPUTY PRESIDENT

Appearances:

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

Hearing details:

2023
Melbourne, Adelaide – by Microsoft teams
14 September

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