Australasian Meat Industry Employees Union v Big River Pork Pty Ltd

[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

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.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australasian Meat Industry Employees Union (AMIEU) filed an application with the Fair Work Commission seeking an order under section 418 of the Fair Work Act 2009 to prevent Big River Pork Pty Ltd (Big River) from engaging in threatened industrial action. The application was submitted ahead of a scheduled hearing regarding the AMIEU’s request for a protected action ballot order (PABO), to which Big River had objected. During the hearing, the Deputy President considered the application and the objection, ultimately determining that a PABO was required. The AMIEU's concern centred on a letter from Big River to the Commission, dated 13 September 2023, which outlined the company's opposition to the AMIEU’s PABO application. The company indicated that if accredited meat inspectors took protected industrial action, the processing of its products would cease, affecting all factory operations and leading to a standdown of approximately 300 employees, which would impose financial strain on those workers. The AMIEU argued that this constituted a threat of unprotected industrial action in the form of a lockout, intended to deter its members from taking protected action.

The legal issue before the Deputy President was whether the letter from Big River to the Commission constituted a threat of unprotected industrial action that warranted an order under section 418 of the Fair Work Act 2009. Section 418 requires the Commission to make an order if it appears that unprotected industrial action by one or more employees or employers is happening, threatened, impending or probable. The Deputy President found that the company's letter did not threaten a lockout of employees; instead, it highlighted a potential standdown of employees due to the cessation of production caused by protected industrial action. A lockout, as defined in section 19(3) of the Act, involves an employer preventing employees from performing work under their contracts of employment without terminating those contracts. The company had not threatened to prevent employees from working under their contracts, but rather noted the potential impact of protected industrial action on the availability of work for others. Consequently, the Deputy President concluded that the company had not threatened to take unprotected industrial action, nor was such action impending or probable, and therefore there was no basis for an order under section 418.

The Fair Work Commission declined to issue an order under section 418 of the Fair Work Act 2009 that the industrial action not occur. The Deputy President determined that the company's letter did not constitute a threat of unprotected industrial action, as it did not involve preventing employees from performing work under their contracts of employment. Instead, the letter addressed the potential consequences of protected industrial action on the company's operations and the availability of work for employees. The Commission's decision was based on the specific language used in the company's correspondence and the legal definitions provided in the Act. The Deputy President also noted that a PABO was required and would be issued. This decision clarifies the boundaries of what constitutes a threat of unprotected industrial action under the Act and underscores the importance of precise language in such communications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established