1 Fair Work Act 2009 s.437—Protected action Australasian Meat Industry Employees Union, The v Northern Co-Operative Meat Company Limited T/A Casino Food Co-Op (B2023/1008) COMMISSIONER CIRKOVIC MELBOURNE, 22 SEPTEMBER 2023 Proposed protection action ballot of employees of Northern Co-Operative Meat Company Limited T/A Casino Food Co-Op [1] This is an application by the Australasian Meat Industry Employees Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Northern Co-Operative Meat Company Limited T/A Casino Food Co- Op (the Respondent). [2] On 21 September 2023, the Respondent initially advised the Commission that it raised concerns in that the Applicant has not been genuinely trying to reach agreement, the questions in the ballot do not meet the statutory requirements, there are exceptional circumstances for the extension of the written period of notice, and that the ballot agent nominated by the Applicant is not on the Commission’s approved list of eligible protected action ballot agents. [3] I determined a Mention should be conducted, during which I discussed these concerns with the parties and other matters subsequently raised. During the Mention, an amended draft order which addressed the Respondent’s concerns about the written period of notice was agreed, and the Respondent advised that it did not intend to pursue its other objections further. [4] With the Mention having resolved the various matters raised, I have proceeded to determine the matter on the papers without holding a hearing. [5] As stipulated above, the parties sought by consent during the Mention that the notice period required under s 414(2)(a) of the FW Act be extended from three working days to four working days if industrial action is being taken on a day it is known that Wagyu Beef is being processed through the slaughter floor. [6] s.443(5) of the Act grants me a discretionary power to specify a longer period of notice than the 3 working days referred to in s.414(2)(a) if I am satisfied that there are exceptional circumstances justifying this. [2023] FWC 2460 DECISION [2023] FWC 2460 2 [7] I have noted the consent position of the parties and I am satisfied having reviewed the Respondent’s outline of submissions that: a) there are facts or circumstances in relation to the proposed action that are “exceptional circumstances, within the ordinary meaning of that phrase; and b) these exceptional circumstances are circumstances “justifying” a longer notice period; and c) in all the circumstances, it is appropriate to exercise the discretion s.443(5) of the Act grants me and order that 4 working days' notice should be given in relation to industrial action being taken on a day it is known that Wagyu Beef is being processed through the slaughter floor. [8] On the basis of the material before me, including the declaration of Mr Patrick Elliot of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met. [9] The ballot is to be conducted by RMK Investments Pty Ltd As Trustee For Kidd Family Trust T/A Australian Election Company (Australian Election Company). Australian Election Company has been approved as an eligible protected action ballot agent under s.468A of the Act,1 and consequently is authorised to conduct the ballot. [10] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting in the protected action ballot is to close is 13 October 2023. This is the equivalent of 14 working days after the date of the Order (22 September 2023). This also establishes the period for the purposes of s.448A(2) of the Act. [11] An order has separately been issued in PR766524. [12] A further listing will be sent out by my chambers listing this matter for a s.448A compulsory conciliation conference. I will issue an order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR766523> 1 RMK Investments Pty Ltd As Trustee For Kidd Family Trust T/A Australian Election Company [2023] FWC 1532