s.229 - Application for a bargaining order

Allied Pinnacle Pty Limited Trading AS Allied Pinnacle

Application for a bargaining Order under s.229 of the Fair Work Act 2009 - application for interim orders - orders not granted - application dismissed.

• [1] Allied Pinnacle Pty Limited (the Applicant) manufactures and supplies flour products to other companies for use in their own products, including 'industrial' flour, to large food manufacturing businesses. It also produces and supplies bakery products to retailers such as Woolworths, Coles, Aldi and independent retailers. On 20 May 2025, it filed an application with the Commission pursuant to s.229 of the Fair Work Act 2009 (the Act) seeking interim orders pursuant to s.589 and s.230 of the Act that would, save for protected industrial action, restrain the United Workers Union (UWU) from:

a) preventing, hindering or interfering with, or attempting to prevent, hinder or interfere with, the free access to and free egress by any person or vehicle from its manufacturing facility located at 23-29 Pinnacle Road, Altona North in Victoria (Altona Facility).

b) taking any action to interfere with, or attempt to interfere directly or indirectly with, the performance of work by employees or contractors at the Altona Facility.

c) attempting to do or direct, induce, procure, advise, incite, cause or assist any person to

• [2] By way of background, the Allied Pinnacle Altona Site Enterprise Agreement 2022-2024 (the Agreement) currently covers the Applicant, the UWU and approximately 140 employees at the Altona facility. The nominal expiry date of the Agreement was 31 December 2024 and during the period from 17 September 2024 (when the Applicant agreed to bargain) until 26 March 2025, the Applicant and the UWU unsuccessfully engaged in negotiations for a new enterprise agreement. The last bargaining meeting between the parties occurred on 18 March 2025 and following subsequent correspondence that passed between the parties, the only matter remaining in dispute as at 26 March 2025, was the quantum of the annual wage increases. Whereas the Applicant proposed annual wage increases of 4%, then 3.75% and finally 3.5%, the UWU sought three annual wage increases of 5%.

• [3] Mr Darren Bartolo, the Applicant's People & Culture Business Partner, gave evidence that since the last bargaining meeting on 18 March 2025, he has engaged in a number of informal discussions with the UWU delegates who had been attending the formal bargaining meetings. These discussions have involved exploring ways in which the bargaining might be resolved, and whether there were any trade-offs or other possible solutions. Mr Bartolo also said he had some incidental discussions with individuals on the picket line but invariably the claim for 5% annual wage increases arose, with this claim also in the subject of regular chanting.

• [4] An application made by the UWU for a protected action ballot order (PABO) was approved by the Commission on 17 April 2025. Authorisation was then obtained for protected industrial action comprising an unlimited number of:

(d) bans on overtime of an indefinite duration; and

(e) bans on the loading of trucks of indefinite duration.

• [5] On 8 May 2025, the UWU notified the Applicant that its members would engage in

industrial action in the form of "a stoppage of work of 48 hours, commencing on Wednesday 14 May 2025 at 6am."

• [6] On 9 May 2025, the Applicant notified its employees that a ballot in relation to a proposed agreement would be held during the period from 10am on 19 May 2025 to 4pm on 21 May 2025. The Applicant's proposed agreement includes the wage offer of 4%, 3.75% and 3.5% over three years it had previously made.

• [7] The notified 48-hour stoppage of work commenced at the Altona Facility on 14 May 2025, during which time the Applicant asserts there was conduct taken against it that was organised by the UWU but not authorised by the PABO. The Applicant claims the conduct was an attempt to place illegitimate pressure on its bargaining position and that it undermined the collective bargaining for a new Agreement. In broad terms, the alleged conduct said to constitute unlawful and obstructive picketing was the physical obstruction of vehicles, false statements made to vehicle drivers, the blocking of exiting vehicles, intimidation of drivers and a refusal to remove obstructions. The Applicant further claims that such conduct is continuing.

• [8] The Applicant's site manager, Matthew Arblaster, gave evidence that only one of an expected 17 delivery vehicles was able to enter the Altona Facility on 14 May 2025 and on 15 May 2025, an estimated 10-12 of 17 expected trucks entered, with some only able to do so with the assistance of police. Mr Arblaster also gave evidence that while only one production line operated on day shift on 14 May 2025, and two on 15 May 2025, production operated on night shift with a full complement of employees.

• [9] The Applicant also sent an email to Liban Ibrahim and Thomas Malone of the UWU on Wednesday 14 May 2025. This email attached a notice of concern which asserted that the UWU was not complying with the good faith bargaining obligations under s.228 of the Act because it was unlawfully preventing or hindering third parties from accessing the Altona Facility. The Applicant requested that the actions which were unlawful and otherwise beyond the scope of the PABO cease, and that the UWU members cease interfering with the free access and egress from the Altona Facility.

• [10] In an emailed response that same day, the UWU denied that either it or its representatives had taken steps to interfere with the access to the Altona Facility. The UWU asserted that no drivers had been prevented from accessing the site and that it understood that at least one truck had entered that day, without issue. The UWU further suggested that several truck drivers may have had only very limited English language skills, such that it was possible that they had misinterpreted representations that the Applicant's workers were on strike for a representation that the Altona Facility was closed.

• [11] The UWU has subsequently notified the Applicant of the intention to take further protected industrial action in the form of 24-hour stoppages of work commencing at 6.00am on each of Tuesday 20 May 2025, Wednesday 21 May 2025, Thursday 22 May 2025 and Monday 26 May 2025.

• [12] The Applicant alleges that a stoppage of work commenced at the Altona Facility 6.00am on Tuesday 20 May 2025. The Applicant also alleges that a waste disposal truck from a waste contractor of the Applicant stopped opposite the driveway of the Altona Facility at 7.05am before departing without turning into the Altona Facility's driveway, after having spoken with two UWU members and a security guard engaged by the Applicant. It is also alleged that when an articulated vehicle from the transport company G&V arrived at the Altona Facility at approximately 9.34 am on 20 May 2025, UWU members in a picket line stood in front of the vehicle shouting "union power" as it attempted to turn into the Facility and that after approximately 3 minutes, this vehicle reversed and left.

• [13] At the hearing Mr Arblaster also attested to having been advised, on the morning of 21 May 2025, that:

1. A delivery truck had driven away without delivering its load following a discussion with picketers.

1. two separate vehicles driven by employees had been obstructed in the Applicant's driveway entrance before navigating their way past; and

1. Two contractors engaged by the Applicant had advised that they were concerned about attending the Altona Facility.

• [14] The Applicant submits bargaining is happening, that it has been unsuccessful to date and that there have been no formal meetings since March 2025, albeit that informal discussions have been ongoing. The Applicant claims that the UWU has been unwilling to move from is 5% annual wage increases, even when asked to consider other options. The Applicant suggests that both parties have deployed 'tools' that are available to them under the Act in order to advance their respective positions, with the UWU having obtained a PABO before notifying and organising protected industrial action and the Applicant having put a proposal to a vote in order to break the impasse.

• [15] The Applicant also asserts that the UWU is also 'stepping outside' that which is protected under the Act. In this regard, the Applicant claims there has been unlawful and obstructive picketing that has been coordinated, repeated, deliberate and designed to cause further disruption to its operation beyond that which can be lawfully achieved through protected industrial action. The Applicant asserts that such conduct is preventing workers who do not wish to engage in stoppages from attending the Altona Facility and that it is preventing third party trucks from entering.

• [16] The Applicant submits there is a clear inference that the picketing is connected with the employee claim action, that it will continue throughout each notified stoppage, and that it is designed to undermine collective bargaining.

• [17] Suggesting that the UWU's response to the notice of concern was effectively a blanket denial and that unlawful and obstructive picketing has continued, the Applicant submits that a

bargaining order is needed to stop that which is being organised by the UWU. The Applicant contends that obstructive picketing is a recognised form of unfair conduct that places inordinate pressure on an employer to meet the bargaining demands of an employee organisation and argues that its purpose is to put immense pressure on an employer to relax its bargaining position in a manner that falls outside the statutory framework erected by the Act. The Applicant argues that such action breaches the good faith bargaining requirement because it is not consistent with the orderly conduct of industrial relations or dialogue designed to bring the bargaining representatives towards a respectful and mutual understanding of each other's position and agreement on a new collective bargain.

• [18] The Applicant also argues that such behaviour does not foster a meaningful exchange of views and is instead distortionary of the dynamics of collective bargaining because it imposes an economic and operational burden that goes well beyond the economic impact of protected action.

• [19] Explaining that the Altona Facility carries out 45% of the Applicant's entire baking output with only one entry point, the Applicant submits that there are no other defensive measures it can adopt beyond employing security guards and calling in the police. It argues this is not an operational or a reasonable state of affairs. The Applicant also submits that without the orders it seeks, it is at the mercy of the picket and the capacity of its security contractors when it comes to getting delivery trucks through. The Applicant takes exception to the picket activity because there is no notification requirement attached to it and as such, it is not possible to take defensive measures to mitigate the damage it inflicts.

• [20] The Applicant submits it is reasonable that the orders it seeks be made because the obstructive picketing has been ongoing and extends beyond the scope of any protected action authorised under the PABO. Further, it claims the picketing is affecting employees and third parties who wish to enter the Altona Facility for work or to conduct business and the UWU's denial to the contrary is unsustainable. The Applicant further submits that there are no matters of convenience that weigh against making the orders sought. Nor would there be identifiable prejudice to the UWU if the orders were made. The Applicant submits the orders will return the bargaining dynamic to that envisaged by the Act and they would not undermine or prevent the lawful undertaking of protected industrial action.

• [21] Section 228 prescribes the good faith bargaining requirements that bargaining representatives for a proposed enterprise agreement must meet, as follows:

"228(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement."

• [22] Sections 229 and 230 of the Act outline the requirements which must be met before a bargaining order can be made, in circumstances where a bargaining representative asserts another bargaining representative has not met or is not meeting the good faith bargaining requirements.

• [23] Section 229(3) states that if an enterprise agreement applies to employees who will be covered by a proposed enterprise agreement, an application for a bargaining order must be made not more than 90 days before the nominal expiry date of the agreement. The application in this case was made on 20 May 2025, which was not more than 90 days before the 31 December 2024 expiry date of the Agreement.

• [24] Section 230 relevantly provides:

"230(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

(2) The FWC must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify)."

• [25] In this case, an application for an order has been made (s.230(1)(a)). Section 230(1)(b) then requires the requirements of s.230 are met in relation to the proposed enterprise agreement. In this regard, I am firstly persuaded the Applicant has agreed to bargain for the Proposed Agreement (s.230(2)(a)).

• [26] Moving to s.230(3), subsection (b) requires the Commission to be satisfied that an applicant for a bargaining order has complied with the requirements of s.229(4). Section 229(4) provides that a bargaining representative may only apply for a bargaining order if it has concerns that one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements. An applicant for a bargaining order must then have given a written notice setting out their concerns to the relevant bargaining representatives and given them a reasonable time within which to respond to those concerns (s.229(4)(b) and s.229(4)(c)). I am satisfied these requirements have been met in this case because an appropriate written notice was given to the UWU by the Applicant on 14 May 2025, and the application was not lodged for a further six days, which I consider was a reasonable period within which to respond. Clearly the Applicant considers that the UWU has not responded appropriately to its concerns (s.229(4)(d)).

• [27] The Applicant seeks a bargaining order "at least on an interim basis." As outlined above, s.230(3)(a)(i) requires the Commission to be satisfied that the UWU has not met or is not meeting the good faith bargaining requirements[1] and s.230(1)(c) provides that the Commission may only make a bargaining order in relation to the Proposed Agreement if it is satisfied that it is reasonable in all the circumstances to make the order. These provisions therefore require "an opinion or satisfaction formed reasonably upon the material before the decision-maker."[2] This is of course a different standard to that which requires establishing an arguable case with some reasonable prospect of success.

• [28] Relevant to the determination of this application is the good faith bargaining requirement in s.228(1)(e) that a bargaining representative refrains from capricious or unfair conduct that undermines freedom of association or collective bargaining. I have not understood the Applicant's contention to have been that the UWU has been or is engaging in capricious or unfair conduct that undermines freedom of association. Rather, it contended that collective bargaining has been and is being undermined. As such, in order to make the orders sought by the Applicant, I must be satisfied on the material before the Commission that:

a) The UWU has not met or is not meeting the good faith bargaining requirement in that it has engaged in capricious or unfair conduct that undermines collective bargaining; and

b) It is reasonable in all the circumstances to make the orders the Applicant seeks.

• [29] I have noted the Applicant's reliance on the concerns expressed by Deputy President Anderson in relation to obstructive picketing in Lion - Beer Spirits & Wine Pty Ltd v United Workers' Union (Lion- Beer Spirits & Wine)[3] but I am not satisfied, having regard to what has transpired in this case to date, that the conduct of the UWU has undermined the capacity for there to be a "meaningful exchange of views" between the parties, or that it has distorted "the dynamics of collective bargaining."[4] While the parties have not held a bargaining meeting since 18 March 2025, it has not been suggested that this is due to the picketing activity or any refusal by the UWU to meet. Nor is there material before the Commission that suggests the UWU would refuse to participate in bargaining meetings going forward, or that picketing activity would prevent this from occurring. Indeed, the UWU's delegates have continued to engage in informal dialogue with the Applicant about the bargaining since 18 March 2025 and Mr Bartolo has had incidental discussions with employees on the picket line.

• [30] The Applicant first made its wages offer of 4%, 3.75% and 3.5% at the bargaining meeting on 18 March 2025. In the face of the UWU's counter position on wages, the protected industrial action and the picketing activity, the Applicant has not felt compelled to abandon its wages position, or bid against itself, or in any other way change its position in relation to bargaining. While Mr Arblaster proffered that the UWU was attempting to have the Applicant change its bargaining position through the picketing and get it back to the bargaining table, he specifically confirmed that the Applicant had not changed its bargaining position when it was suggested to him that nothing had occurred that had made it necessary for the Applicant to make concessions and he further confirmed that the Applicant had not adopted a different bargaining approach on account of what had been occurring. The evidence satisfies me that the picketing activity to date has not resulted in the Applicant either changing its position on wages or seeking to resume bargaining meetings with a revised position. Mr Arblaster in fact advised that the Applicant was intent on continuing with the vote and awaiting its outcome so that it could assess where things were at.

• [31] The Applicant has maintained its position since 18 March 2025 and elected, of its own volition, to put an agreement proposal that includes its unchanged position on wage increases to a ballot, rather than seeking more bargaining meetings. This ballot has been conducted electronically by a third-party provider, and the picketing activity has not adversely affected the voting turnout. Indeed, by the time of the hearing, 80% of employees had already voted.

• [32] It is uncontroversial to note that the UWU's seeking and obtaining of the PABO and its subsequent organising of protected industrial (notified in accordance with the requirements in the Act) are all processes contemplated in the Act's bargaining regime. It may also be noted that irrespective of the picketing activity undertaken to date, some employees have been electing to take the protected industrial action organised by the UWU but others have chosen not to, and production is also continuing, albeit with an unquantified level of disruption. I am not satisfied, however, that there has been capricious or unfair conduct by the UWU "that goes well beyond the economic impact of protected action" in the sense discussed by Deputy President Anderson in Lion- Beer Spirits & Wine.[5] There was next to no substantive material before the Commission going to the economic impact consequent upon the picketing activity.

• [33] Ultimately, therefore, I am not satisfied on the material before the Commission that the UWU has been or is engaging in capricious or unfair conduct that undermines the collective bargaining scheme of the Act. Bargaining has been able to continue. This being the case, I am not satisfied that it is reasonable in all the circumstances to make the orders sought on an interim basis. Nor do I consider there is a basis to list the application for a final hearing. The Applicant has put on voluminous evidence regarding the conduct of the UWU and there was no indication suggesting there was to be further evidence lead. Should the Applicant consider, at some later point, that there is a proper basis to make further application, it may do so. The Application is dismissed.

A.D.H. Denton, counsel, for Allied Pinnacle Pty Limited.

N Pefanis, on behalf of the United Workers' Union.

[1] Section 230(3)(a)(ii) is not relevant in this case.

[2] Wills v Marley & Sydney Trains and Another [202] FWCFB 4514 at [48].

[3] [2020] FWC 6617.

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