JBS Australia Pty Ltd v The Australasian Meat Industry Employees Union

[2024] FWCFB 453

[2024] FWCFB 453

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

JBS Australia Pty Ltd
v

The Australasian Meat Industry Employees Union

(C2024/7192)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ROBERTS SYDNEY, 9 DECEMBER 2024

Appeal against decision [2024] FWC 2639 of Commissioner Allison at Melbourne on 26 September 2024 in B2024/1241 – Application to extend the 30-day period to commence protected industrial action for the purposes of s 459(1)(d) of the Fair Work Act 2009 (Cth) – Order extending the period for a further 30 days made by the Commissioner – No protected industrial action taken by employees of JBS during the extended period – No utility in granting permission to appeal – No question of general importance or wider significance raised – Permission to appeal refused.

Introduction

1. JBS Australia Pty Ltd (JBS) seeks permission to appeal from the decision of Commissioner Allison in Australian Meat Industry Employees’ Union v JBS Australia Pty Ltd[2024] FWC 2639. In that decision, the Commissioner extended the period in which protected industrial action must commence under s 459(3) of the Fair Work Act 2009 (Cth) (the Act) in order that it be authorised by a protected action ballot. The Commissioner ordered that the period be extended by a further 30 days.

1. The background to the proceedings before the Commissioner was that, on 31 July 2024, a member of the Commission made an order for the conduct of a protected action ballot to determine whether members of the Australian Meat Industry Employees’ Union (the AMIEU) employed by JBS wished to authorise the taking of protected action in support of a proposed enterprise agreement. The ballot closed on 22 August 2024. The ballot report declared that AMIEU members had authorised the taking of protected action.

1. The 30-day period within which industrial action must commence for it to remain authorised started on 22 August 2024. No protected industrial action was taken in the initial 30-day period. On 20 September 2024, the AMIEU applied, pursuant to s 459(3) of the Act, to extend the period for protected industrial action. The application was opposed by JBS. The primary basis of its opposition was that, it submitted, the AMIEU was no longer genuinely trying to reach agreement because it was, at that time, seeking that JBS enter a memorandum of understanding rather than make an enterprise agreement. The Commissioner considered evidence in relation to the conduct of the parties and did not accept the submission that the AMIEU was not genuinely trying to reach agreement. As we have said, the Commissioner made an order extending the period by a further 30 days on 26 September 2024.

1. JBS requires permission to appeal under s 604(1) of the Act. At the conclusion of the hearing of the application for permission to appeal on 9 December 2024, the Full Bench indicated that it was not satisfied that it was appropriate to grant permission to appeal and ordered that permission to appeal be refused. These are the reasons of the Full Bench for that decision.

Permission to appeal

1. Section 604(1) of the Act permits a person who is aggrieved by a decision of the Commission to appeal the decision. However, there is no right to appeal. An appeal may only be brought with the permission of the Commission. The Commission is required by s 604(2) to grant permission to appeal if it is satisfied that it is in the public interest to do so. In addition, the Commission has a general discretion as to whether to grant permission to appeal even if not satisfied the public interest to do so.

1. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[1] The type of circumstances that might warrant a conclusion that it is in the public interest to grant permission to appeal include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from the Full Bench is required, where the decision at first instance manifests an injustice or the result is counter intuitive, or where the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[2] The grounds upon which the Commission might otherwise grant permission to appeal are not specified in the Act. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration, and that substantial injustice may result if leave is refused.[3]

1. One basis upon which permission to appeal might be refused is that the appeal has no utility. It is well-established that permission to appeal will rarely be granted if it is demonstrated, as a result of the passing of time or as a consequence of other proceedings in the Commission or the courts, that there is little or no utility in determining the merits of the appeal.[4] In Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266, for example, a Full Bench of the Commission said:[5]

Permission to appeal may be refused on the ground that the appeal lacks utility in the sense that the ultimate outcome of the application before the Commission to which the appeal relates would not be affected by the outcome of the appeal, or that the appeal otherwise has no practical purpose, even if appealable error is demonstrated.

1. This case falls within the second category. There would be no useful purpose in granting permission to appeal in this matter because the appeal, even if successful, would have no practical consequences for the parties.

1. The AMIEU’s written submissions in this indicated that employees of JBS did not take protected industrial action during the extended period allowed by the Commissioner. As such, no industrial action commenced within the initial 30-day period starting from the date of the declaration of the results of the ballot or the further period allowed by the Commissioner. The consequence is that no industrial action has been authorised by the protected action ballot as a result of the operation of s 459(1)(d) of the Act. Furthermore, s 459(3)(b) makes clear that the Commission cannot further extend the period for protected industrial action to commence. If the AMIEU and its members wish to take protected industrial action, it will need to apply for a further protected action ballot order. In those circumstances, even if JBS were successful in establishing error in the decision of the Commissioner, there would be no practical consequences to the parties.

1. Mr Ash, who appeared for JBS, accepted that the decision of the Commissioner has no direct ongoing practical effect on it. However, Mr Ash advanced two reasons why permission to appeal should nonetheless be granted.

1. First, Mr Ash submitted that the circumstances which were considered by the Commissioner continue to exist and it is possible that the same question might arise in future proceedings in an application for a further protected action ballot order or for bargaining orders. Mr Ash submitted, albeit unaided by evidence, that the AMIEU continues to seek that JBS enter a memorandum of understanding rather than make an enterprise agreement. We do not accept the possibility of a similar factual question might arise in the future justifies granting permission to appeal. There are presently no other proceedings before the Commission in relation to the bargaining. It is not known whether there ever will be. If the question of whether the AMIEU is genuinely trying to reach agreement were to arise in future proceedings, the Commission would be called upon to determine that factual question based on such evidence as is then before it. The decision of the Commissioner does not dictate a conclusion that the AMIEU is or is not genuinely trying to reach agreement at any other time. It would not be binding upon, or even influential to, any decision the Commission is required to make in relation to the conduct of the parties at some unknown future time.

1. Second, Mr Ash submitted that the appeal raises a question of importance and general application. He submitted that he had been unable to find authority examining whether a bargaining representative was genuinely trying to reach agreement in circumstances in which it was seeking that the employer make a type of instrument other than an enterprise agreement. We do not accept that any question of principle or general application arises. Assuming that whether a party is genuinely trying to reach agreement is relevant to the discretion to extend the 30-day period under s 459(3) of the Act, that question involves a finding of fact that must be made by reference to the particular circumstances of each case.[6] In Kuiper Australia Pty Ltd v Australian Workers’ Union[2024] FWCFB 378, the Full Bench explained in the context of s 443 of the Act:[7]

… The matter about which the Commission must be satisfied is whether the applicant has been, and is, genuinely trying to reach agreement with the employer. The authorities (with respect sensibly) have eschewed attempts to establish rigid or generally applicable rules as to what must have occurred in bargaining before the Commission is likely to be satisfied that an applicant is genuinely trying to reach agreement. The Commission is required to make an impressionistic assessment of whether an applicant is genuinely trying to reach agreement in light of the particular circumstances of each application.

1. The conclusion of the Commission in this matter turned on an examination of the evidence as to the communications between JBS and the AMIEU and their conduct in the bargaining currently being undertaken. The factual conclusion reached by the Commissioner does not give rise to any question of principle or of general application outside of these proceedings that would warrant permission to appeal being granted.

Conclusion

1. For these reasons, the Full Bench refused permission to appeal. An order will issue separately to that effect.

VICE PRESIDENT

Appearances:

W Ash, Group Manager IR and Legal, for the Appellant.
B Swan, National Industrial Officer, for the Respondent

Hearing details:

9 December 2024.
Sydney.

[1] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]-[46].

[2] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[3] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30]; Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8205; (2013) 238 IR 258 at [12].

[4] Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8205; (2013) 238 IR 258 at [19]; Maritime Union of Australia v Harbour City Ferries Pty Ltd [2014] FWCFB 3858 at [28]; Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266 at [8]; Mt Arthur Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2016] FWCFB 3452 at [13]-[14]; United Firefighters Union of Australia v Australian Capital Territory[2020] FWCFB 2485 at [54].

[5] Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266 at [8].

[6] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 407 at [31]; JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297 at [58] (Flick J).

[7] Kuiper Australia Pty Ltd v Australian Workers’ Union[2024] FWCFB 378 at [27].

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