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Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australasian Meat Industry Employees Union, The
v
Coles Supermarkets Australia Pty Ltd T/A Coles Supermarket
(B2015/31)
COMMISSIONER BULL SYDNEY, 6 MARCH 2015
Proposed protected action ballot of employees employed in Coles Supermarket meat
departments in the State of New South Wales and the Australian Capital Territory;
application to extend minimum period of notice; whether exceptional circumstances exist.
[1] This is an application for a protected action ballot order pursuant to s.437 of the Fair
Work Act 2009 (the Act) made by the Australasian Meat Industry Employees’ Union (the
Union) employed by Coles Supermarkets Australia Pty Ltd T/A Coles Supermarket (Coles).
[2] The Union seeks to ballot all employees of the employer, employed in meat
departments in the employer’s stores in the State of New South Wales and the Australian
Capital Territory who are members of the Union and for whom the Union is their bargaining
representative. The Union represents employees employed in the meat departments at Coles
stores in NSW and the ACT.
[3] Following the filing of the application by the Union, Coles, through its legal
representative advised that it wished to be heard on the terms of the ballot order sought by the
Union. In essence, Coles sought an extension to the notice period a bargaining representative
must provide before taking protected industrial action. Section 414(2) of the Act requires that
written notice of any action to be taken must be provided at least 3 working days prior to the
action occurring. The notice given must specify the nature of the action and the day on which
it will start (s.414(6)). Where the Commission is satisfied that there are exceptional
circumstances justifying the minimum period of notice being longer than 3 working days, the
protected action ballot order may specify a longer period of up to 7 working days (s.443(5)).
[4] Directions were issued on 18 February, 2015 for the parties to provide any written
material to support their positions. Subsequently, the Commission received written material
from Coles submitting that there were exceptional circumstances justifying an extension of
the minimum written notice requirement (pursuant to s.443(5) of the Act) and argued that 7
working days notice was reasonable. The Union submitted that no extension should be
granted.
[5] The matter was listed for hearing on 3 March 2015 in Sydney. Mr Buckley appeared
for the Union and Mr Gardner of counsel sought leave to appear for Coles. There was no
[2015] FWC 1567
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 1567
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objection from the Union to Mr Gardner’s representation and leave to appear was granted
pursuant to s.596(2)(a) with the Commission being satisfied that the matter was of sufficient
complexity and Mr Gardner’s representation would enable the matter to be dealt with more
efficiently.
[6] The proposed protected industrial action to be taken is set out in the Union’s draft
ballot order, the question(s) to be put are:
“For the purpose of supporting or advancing claims made in respect of the proposed
enterprise agreement with your employer, do you authorise the following types of
industrial action being taken, whether separately, concurrently or consecutively:
An unlimited number of stoppages of the performance of work for 20 minutes?
An unlimited number of stoppages of the performance of work for 2 hours?
An unlimited number of stoppages of the performance of work for 4 hours?
An unlimited number of stoppages of the performance of work for 10 hours?
An indefinite ban on the performance of overtime prior to and/or after the
ordinary span of hours?”
Legislative requirements
[7] Section 443 of the Act stipulates when the Commission must make a protected ballot
order:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a
proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely
trying to reach an agreement with the employer of the employees who
are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a
proposed enterprise agreement except in the circumstances referred to in
subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be
balloted, including the nature of the proposed industrial action.
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[8] In accordance with s.443(1)(a) I am satisfied that the application has been made in
accordance with s.437.
Genuinely trying to reach agreement
[9] Section 443(1)(b) requires the Commission to be satisfied that the applicant (the
Union) has been, and is, genuinely trying to reach an agreement with the employer.
[10] In support of its application for a protected action ballot order, the Union attached two
statements made by its officials involved in negotiating the proposed enterprise agreement.
[11] The statements of Mr Grant Courtney, Secretary of the Newcastle and Northern New
South Wales Branch of the Union and Mr Charlie Donzow, Secretary of the Union’s NSW
branch both traversed the bargaining history between the parties. It was evident that despite
more than 20 bargaining meetings between April 2014 and December 2014, the parties have
been unable to reach agreement on a fundamental issue of principle. Coles wish to have a
single national retail enterprise agreement which covers all store employees and has
conducted negotiations with the Shop Distributive and Allied Employees Association for that
purpose, whereas the Union were initially seeking a separate national meat agreement, and are
now pursuing state based agreements that cover meat department employees. At a bargaining
meeting held on 1 December 2014, an “in principle agreement” was reached between Coles
and the SDA.
[12] Coles did not submit that the Union has not been genuinely trying to reach agreement.
[13] As noted by the majority in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union
of Australia1, the word “genuine” includes as defined by the Macquarie Dictionary as “being
truly such; real”. To give full meaning to the expression genuinely trying to reach an
agreement, the Commission must be satisfied that the means undertaken by the Union to
reach an agreement are “truly such” as to reach an agreement; or are “real” efforts to reach
an agreement. The words are directed to the authenticity of the Union’s efforts.
[14] In the Federal Full Court decision of J.J. Richards & Sons Pty Ltd v Fair Work
Australia2 Flick J stated:
“[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work
Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying
to reach an agreement with the employer” unless:
an applicant has approached the employer and informed the employer of the general
ambit of that for which agreement is sought; and
the employer has foreshadowed – even in the most general of terms – its attitude as to
the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the
terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is
required is sufficient to dispose of the present Application.”
1 [2010] FWAFB 9963 at 57-58.
2 [2012] FCAFC 53
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[15] Having considered the statements of both Union officials and applying the relevant
authorities I am satisfied that the Union in its negotiations, including numerous face to face
meetings with Coles, has been, and is, genuinely trying to reach an agreement.
Longer Period of Notice
[16] Coles initially pursued a notice period of seven working days on the basis that there
were exceptional circumstances related to the nature of their business which justified the order
of an extension of time, with particular reference to wastage of product. A witness statement
of Mr Eric Daffy, the Meat Operations Manager was provided to demonstrate that without the
additional notice, it is likely that an unspecified amount of meat product will potentially go to
waste. This results from a combination of the Coles ordering processes, distant locations and
peak periods such as school holidays and the Easter holiday period.
[17] Prior to the hearing, the Union provided written submissions opposing the notice
period extension from 3 days to 7 days, however, a concession was made for a period of 5
days written notice to be provided over the Easter holiday period.
Legislation
[18] Section 414 of the Act provides, in relation to the required period of written notice:
"414 Notice requirements for industrial action
Notice requirements—employee claim action
(1) Before a person engages in employee claim action for a proposed enterprise
agreement, a bargaining representative of an employee who will be covered by
the agreement must give written notice of the action to the employer of the
employee.
(2) The period of notice must be at least:
(a) 3 working days; or
(b) if a protected action ballot order for the employee claim
action specifies a longer period of notice for the purposes of
this paragraph—that period of notice.”
[19] Section 443(5) provides that if the Commission is satisfied, in relation to the proposed
industrial action that is the subject of the protected action ballot, that there are exceptional
circumstances justifying the period of written notice referred being longer than 3 working
days, the protected action ballot order may specify a longer period of up to 7 working days.
“443(5) If the FWC is satisfied, in relation to the proposed industrial action that is the
subject of the protected action ballot, that there are exceptional circumstances
justifying the period of written notice referred to in paragraph 414(2)(a) being longer
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than 3 working days, the protected action ballot order may specify a longer period of
up to 7 working days.”
[20] On the day of the hearing, the parties advised the Commission that an agreed position
had been reached with each party having made concessions to their original positions.
[21] Despite the commendable agreement between the Union and Coles on the terms of the
draft order incorporating an extended notice period, the Commission is still required to be
satisfied that there are exceptional circumstances justifying the period of written notice being
longer than 3 working days, pursuant to s.443(5) of the Act. In this regard, the Commission
relies on the submissions made by counsel for Coles, Mr Gardner and supported by Mr
Buckley on behalf of the Union.
[22] It is necessary to examine, whether or not the circumstances demonstrate something
exceptional. An inconvenient result or outcome to Coles will not be sufficient.
[23] Mr Gardner referred the Commission to the decision in Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Australian Postal Corporation (CEPU v Australia Post)3 In that decision, Vice President
Lawler, referring to the Decision of Rares J in Ho v Professional Services Review Committee
No 2954, stated the following:
"[10] In this passage his Honour was concerned with the ordinary meaning of the
expression "exceptional circumstances" and the approach identified is, in my view,
equally applicable to the use of that expression in s.465(3). In summary, the
expression "exceptional circumstances" requires consideration of all the
circumstances. To be exceptional, circumstances must be out of the ordinary course, or
unusual, or special, or uncommon but need not be unique, or unprecedented, or very
rare. Circumstances will not be exceptional if they are regularly, or routinely, or
normally encountered. Exceptional circumstances can include a single exceptional
matter, a combination of exceptional factors or a combination of ordinary factors
which, although individually of no particular significance, when taken together are
seen as exceptional. It is not correct to construe "exceptional circumstances" as being
only some unexpected occurrence, although frequently it will be. Nor is it correct to
construe the plural "circumstances" as if it were only a singular occurrence, even
though it can be a one off situation. The ordinary and natural meaning of "exceptional
circumstances" includes a combination of factors which, when viewed together, may
reasonably be seen as producing a situation which is out of the ordinary course,
unusual, special or uncommon.
3 [2007] AIRC 848
4 [2007] FCA 388 (27 March 2007)
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[11] However, it is important to note that when considering whether to make an order
pursuant to s.463(5) the Commission is not simply concerned with determining
whether there are exceptional circumstances. There must be exceptional circumstances
"justifying" the specification of a longer notice period. The notion of justification is
critical and calls for a consideration of the purpose of the notice required by s.441."
[24] The Vice President went on to state:
"[21] Essentially, what is required in determining whether exceptional circumstances
justify an extension of the required notices period is a weighing of the interests of the
employer and third parties in the employer having a greater opportunity to take
appropriate defensive action as against the diminution in the effectiveness of the
employees' bargaining power that results from such an extension. The fact that the
legislature has seen fit to condition the ordering of an extension of the required notice
period on the presence of exceptional circumstances justifying it, as distinct from
merely conferring a simple discretion to extend the required notice period, indicates
that ordinarily there should be no extension.
[22] The first example provided in Davids Distribution provides an illustration of
where exceptional circumstances may justify an extension of the required notice
period. A sophisticated piece of plant, such as a smelter, may take many days to shut
down without damage. The employer is exposed to wholly disproportionate damage if
it is prevented by too limited a notice period from undertaking an orderly shutdown of
the plant. A further example may be afforded by a strike by teachers where the school
needs to be able to notify parents of the strike so as to give them an opportunity to
make alternative arrangements for the care of their children on the days of the strike.
Typically, three working days will be insufficient for this purpose…"
[25] Mr Gardner also referred to a number of cases where the Commission has increased
the notification period, generally in relation to essential services; however extension orders
have been granted in similar circumstances to the present application.5
[26] It was submitted that, on the basis of the circumstances of supply and operation of
Coles meat departments and the perishable nature of the product, failure to grant the agreed
extended notification period would potentially result in significant wastage of product.
[27] Further, it was submitted that protected industrial action in the Easter holiday period
justifies the additional agreed notice period. Further, it was submitted a public interest existed
on the basis of the unnecessary slaughter of livestock. It was put that this damage was over
and above the normal economic harm resulting from industrial action.
5 AMIU v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd [2012] FWA 2730 AMIEU v Coles
Supermarkets Australia Pty Ltd [2014] FWC 8871
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[28] I consider that in this case exceptional circumstances do exist to justify an extension of
the 3 day written notice period which relate to concerns regarding a significant amount of
spoilage and wastage of meat products that cannot be avoided within the standard 3 day notice
period. The employees are involved in the management of a product with a limited shelf life
which is required to be delivered and processed expediently. Taking the proposed industrial
action listed in the draft ballot order at its fullest, the action is unlimited in the number of
stoppages that may occur. As such, I accept that the agreed extension of the notice period and
the circumstances in which that is to occur should be reflected in the ballot order sought, that
being:
Five days’ notice during the period between 30 March 2015 to 7 April 2015
(inclusive) for Coles ISM and Coles Butchery stores (but not Retail Ready Stores)
Four day’s notice for any metropolitan stores where notice of action is given to Coles
during the period from 30 March 2015 to 7 April 2015 (inclusive).
[29] Coles has requested that the statement of Mr Eric Daffy, the Meat Operations Manager
be kept confidential for commercial reasons which the Union do not oppose. Mr Daffy’s
statement will be marked confidential and not to be disclosed to outside parties.
[30] A separate Order [PR561120] for a protected action ballot will now issue.
COMMISSIONER
Appearances:
C Buckley for the Australasian Meat Industry Employees Union
C Gardner of Counsel, for Coles Supermarkets Australia Pty Ltd
Hearing details:
2015
Sydney
March 6.
Printed by authority of the Commonwealth Government Printer
Price code C, PR561713
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