DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Turosi Pty Ltd T/A Golden Farms Geelong
(B2021/656)

Proposed protected action ballot of employees of Turosi Pty Ltd T/A Golden Farms Geelong- extension of required notice for employee claim action sought.

[1] At 5.56pm on Monday 9 August 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Union) applied for a protected action ballot order (PABO). 1

[2] In its application, the Union sought an order that eight maintenance employees of Turosi Pty Ltd T/A Golden Farms Geelong (Turosi) who are represented by the Union and who will be covered by the proposed agreement be balloted to see if they supported the taking of protected industrial action.

[3] The Union and Turosi had a series of discussions regarding the application and the orders sought and reached an agreed position in relation to a range of matters. At 4.03pm on Tuesday 10 August 2021, my Associate was advised that Turosi did not oppose the making of a protected action ballot order but sought an extended notice period of intended industrial action from 3 working days to 7 working days in accordance with s.443(5) of the Fair Work Act 2009 (the Act) with respect to where protected industrial action was to be in the form of action identified in question 3 of the draft order. This question, one of five, reads: “An unlimited number of stoppages of work for a duration of 12 hours?” The parties were unable to reach a consent position on this issue and Turosi sought to be heard.

[4] In these circumstances, the matter was listed for hearing before me at 12.00pm on Wednesday 11 August 2021. The Union and Turosi were directed to file an outline of argument and any other material upon which they sought to rely in support of their respective positions by 9.30am on 11 August 2021.

Turosi’s evidence and submissions

[5] The exceptional circumstances relied upon by Turosi in this matter relate to the impact of a 12-hour stoppage specified in the PABO application, given the nature of the role of the relevant employees and the impact upon livestock and animal welfare.

[6] Mr Joel Kopanica is the General Manager of Agriculture for Turosi. He is responsible for the management of stock flow into the processing operation. Mr Kopanica’s evidence included the following:

•  Turosi operates an integrated chicken processing operation with a livestock side and a processing side. It is a “day-old to death” system whereby the chickens are hatched, fed for growth, thinned out and then processed when they reach processing age. At the Geelong site in question, 100,000 chickens are processed five days per week.

•  The Geelong operation runs on a cyclical pattern. Eggs start in incubators for 21 days and once hatched the chicks are placed in sheds. The various sheds are constantly approaching maximum density. Any restriction in processing will result in significant welfare issues due to overcrowding as flocks due for processing grow beyond programmed processing weight.

•  Overcrowding will stress birds due to poor litter quality, crowding of available feed and drinking space and overheating as shed ventilation fails to cope with the higher density due to weight increase of birds which have gone past their due processing date. Overcrowding will also increase the risk of disease outbreaks leading to further suffering of birds which should have been processed at the correct age.

•  Increased stress and suffering on birds resulting in delay in processing will significantly increase the risk of disease and the flow on effects could last for several weeks.

•  Any strike action delaying processing will result in having birds suffering needlessly. This will breach the RSPCA guidelines for poultry production and legislation on poultry standards.

•  The chickens must be processed as programmed to allow time for sheds to be cleaned and prepared for chicks already programmed for hatching. Failure to have shedding available will require the slaughter of over a million day-old chicks per week.

•  Maintenance employees at the processing plant are responsible for ensuring equipment operates as it should, and any breakdowns are repaired as quickly as possible to ensure processing continues.

•  While the business can cope with 3 days’ notice of short stoppages or overtime bans, a 12 hour stoppage will effectively mean the business is unable to process birds on that day and therefore considerable reprogramming of livestock production will be required.

•  Ideally, the business would have 3 weeks’ notice of any such action because this would allow Turosi to process extra chickens each day from amongst those that are approaching processing age in the lead-up to the commencement of the industrial action, thereby avoiding the density pressure.

•  The 7 day maximum allowed for in the Act will not eliminate all the animal welfare issues but would give the business time to try to minimise the impact on the livestock and alleviate density pressure.

•  3 days’ notice would definitely result in cruelty and death to the birds as described above.

[7] Mr Kopanica acknowledged that with 48 hours’ notice ahead of a COVID-related shutdown last year, Turosi was able to transport chickens from Geelong to other sites in Victoria and work with the RSPCA to mitigate any animal welfare issues. Mr Kopanica also acknowledged that the absence of the eight maintenance workers due to industrial action would not of itself impact on processing, only presenting as an issue in the event of an equipment breakdown. However, he stated that Turosi would not risk processing without maintenance employees on hand in the event of a 12 hour stoppage.

[8] Turosi submits that the approach to exceptional circumstances where an application for an extended notice period for proposed industrial action is made, was discussed by Vice President Lawler in CEPU v Australia Post Corporation (“Australia Post”), 2 a matter considering an equivalent provision of the former Workplace Relations Act 1996 and in which His Honour concluded:

“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.” 3

[9] Given the particular nature of the work performed by employees covered by the proposed ballot and the potential impact on animal welfare that a 12 hour stoppage could have, Turosi submits that exceptional circumstances exist which justify the period of written notice being 7 working days in respect of the action referred to in the question 3 of the PABO Application. Turosi submits its capacity to make reasonable contingency arrangements for the reprogramming of production in such a way as to minimise, although not eliminate entirely the impact on livestock, is entirely dependent on having the additional notice.

[10] Turosi submits that adopting the approach in Australia Post, the Commission has accepted that exceptional circumstances exist in industries where livestock or animal welfare issues and has extended the notice period in other decisions relating to PABO applications. 4

Submissions of the Union

[11] The Union also relies on the following from the decision of Vice President Lawler in Australia Post:

“In short, I am satisfied that there are exceptional circumstances in the present case. The issue is whether those exceptional circumstances justify an extension of the required notice period.” 5

[12] It submits that Australia Post makes clear the onus rests with Turosi to make out “exceptional circumstances” to the requisite standard and this requires evidence of how animals will be harmed by the proposed action. The Union submits that there is no danger of any harm to animals. It submits this assertion is supported by the fact that when the Geelong operation was shut down for deep cleaning in 2020 due to COVID, there were no reported instances of harm to any animals.

[13] The Union also proffers that the existing Turosi Pty Ltd Trading as Golden Farms Geelong Maintenance Agreement 2018 contains no references to cruelty or animal welfare.

[14] Further, in a submission going to whether the Commission’s discretionary power to grant an extension should be exercised, the Union submitted the extension sought by the Respondent is a direct attack on the right to strike, which it claims is already severely limited by the Act. The Union submits that a further diminution of this right is not warranted in the present circumstances.

[15] The Applicant submits that the requirements of s 443(1) of the Act are satisfied and therefore the Commission should make a protected action ballot order.

Consideration

[16] It is not disputed and based on the material before me, I am satisfied that:

1. The Union is a bargaining representative for the employees; 6

2. The application specifies the group of employees to be balloted and the questions to be put to the employees; 7

3. A copy of the application was given to Turosi and the AEC within 24 hours of the making of the application; 8

4. The nominal expiry date of the applicable agreement has passed; 9 and

5. The Union is genuinely trying to reach agreement with Turosi. 10

[17] The only disputed issue in this application for a protected action ballot order concerns the notice requirement for engagement in the proposed employee claim action outlined in question 3 of the draft order. Section 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.

[18] The principles to be applied in relation to an extension of the notice period were outlined in decision of the Full Bench in National Tertiary Education Industry Union v Charles Darwin University. 11 In particular, the Full Bench outlined to following:

•  the right to otherwise give three working days’ written notice of industrial action “should not lightly be curtailed” by the imposition of a longer period of notice; 12

•  the meaning to be given to the expression “exceptional circumstances justifying” in s.443(5) is that which was discussed in the following terms in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation:

“[10] … 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.” 13

•  The determination of whether the circumstances in a particular case are “exceptional” involves an evaluative judgement. 14

•  A member of the Commission must first identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said to inform the evaluative judgement that such factors or circumstances are exceptional circumstances, with the phrase “exceptional circumstances” carrying its ordinary meaning. 15

•  There must then be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice. 16

•  If the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must then be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances. 17

[19] These principles and the three-step decision-making process was endorsed by the Full Bench in National Tertiary Education Union v Charles Darwin University. 18

[20] Turosi based its application for an extension of the notice period in respect of protected industrial action in the form of 12 hour stoppages solely on the basis of animal welfare issues. The essence of the application made by Turosi for an extension of the notice period is that if the standard notice period notice of protected industrial action involving the 12 hour stoppages of labour is given, it may give rise to a situation where Turosi is unable to make the necessary arrangements for the reprogramming of production to minimise the impact on the live chickens. It says that if this occurs, significant animal welfare issues will arise due to overcrowding, increased stress and suffering of flocks and that there will be the increased risk of disease. Turosi submits that such outcomes will amount to a breach of RSPCA guidelines and animal welfare legislation.

[21] The Union is effectively advancing a proposition that no additional notice should be required because Turosi can and should immediately start putting in place contingency arrangements by reducing the numbers of eggs placed in incubators now so that there will be sufficient room in the sheds in approximately one month’s time, in the event that:

•  the PABO application is granted;

•  the protected action ballot is then conducted;

•  12 hour stoppages are authorised by the protected action ballot; and

•  the three working days’ notice required by s.414(2)(a) is given.

[22] In effect, the Union is inviting Turosi to commence preparation for reduced production volume now, with the consequent impact on its future supply levels, ahead of protected industrial action that may or may not be notified in approximately one month’s time. Such a proposal is detached from commercial reality.

[23] Having regard to the particular facts or circumstances before me in relation to the proposed industrial action in the form of 12 hour stoppages, I am not satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days. I have noted that the Geelong processing operation operates for five days per week, that Turosi could increase its production volumes in the three working day lead-up to the commencement of any industrial action involving 12 hour stoppages and that Turosi has a demonstrated capacity to move chickens to other sites in Victoria at short notice to respond to capacity issues. I also observe that there exists the opportunity to commence contingency planning for such movement and processing of livestock that would be in excess of the capacity at the Geelong operation, should any 12 hour stoppages eventuate. In these circumstances, Turosi has not satisfied me that the animal welfare issues that were described by Mr Kopanica will necessarily materialise.

Conclusion

[24] For the reasons set out above, I am satisfied that the Union has satisfied the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected ballot action order. However, as outlined above, I am not satisfied there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than 3 working days with respect to circumstances where the protected industrial action is to be in the form of the action listed in question 3 of the protected action ballot order. The Order will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Mr R Wainwright for the Australian Manufacturing Workers’ Union
Mr D McLaughlin on behalf of Turosi Pty Ltd T/A Golden Farms Geelong

Hearing details:

2021.
By Video via Microsoft Teams:
August 11.

Printed by authority of the Commonwealth Government Printer

<PR732748>

 1   See s.437 of the Fair Work Act 2009.

 2   [2007] AIRC 848.

 3   Ibid at [10].

 4   NUW v Ridley AgriProducts [2017] FWC 6242, AMIEU v Coles Supermarkets [2015] FWC 2383, AMIEU v Coles Supermarkets [2015] FWC 1567 and CPSU v Dept of Agriculture [2011] FWA 3727.

 5   [2007] AIRC 848 at [25].

 6   Fair Work Act (2009), s.437(1).

 7   Ibid, s.437(3).

 8   Ibid, s.440.

 9   Ibid, s.438(1).

 10   Ibid, s.443(1)(b).

 11   2018] FWCFB 4011.

 12   Ibid at [20].

 13   2018] FWCFB 4011 at [21].

 14   Ibid at [23].

 15   Ibid.

 16   Ibid at [24].

 17   Ibid at [25].

 18   [2019] FWCFB 1150 at [13]-[15].