Fair Work Act 2009

s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of PFD Food Services Pty Ltd

• [1] PFD Food Services Pty Ltd (PFD or Employer) operates 14 distribution centres across Queensland and northern New South Wales. PFD is a wholesale distributor of frozen, chilled, and ambient food products, as well as fresh meat and seafood, dry goods, bakery items, confectionery, dairy, eggs, condiments, packaging, and cleaning solutions.

• [2] This decision relates to 2 Applications made under s437 of the Fair Work Act 2009 (Act) for protected action ballot orders (PABO) that relate to the same proposed enterprise agreement. Firstly, an Application by the Transport Workers' Union of Australia (TWU) in relation to certain employees of PFD at the Brisbane Distribution Centres (Brisbane DCs) (TWU Application).[1] Secondly, an Application by the United Workers' Union (UWU) in relation to certain employees of PFD at the Brisbane DCs (UWU Application).[2]

• [3] Both Applications were initially filed with the Commission on 11 August 2025. On the same date, both Applications were allocated to the Commission's Bargaining Support Team. The Commission's Bargaining Support Team requested for PFD to respond to both Applications by no later than 1:00PM, Tuesday, 12 August 2025.

• [4] On 12 August 2025, PFD provided their initial response to the TWU Application, objecting to proposed ballot questions 6 and 7. The Commission's Bargaining Support Team then directed the TWU to respond to PFD's objections by no later than 2:30PM, Tuesday, 12 August 2025. The TWU then requested an extension until 9:00AM, Wednesday, 13 August 2025 as the then TWU representative was engaged in a separate Commission proceeding. PFD objected to the TWU's request for an extension of time. At around 4:41PM, 12 August 2025 the Commission's Bargaining Support Team then replied to the TWU outlining that their extension request was denied as it would restrict the Commission's ability to determine the PABO Application within the statutory requirement of 2 working days (as far as practicable) and that it would be referred to a Commission Member for determination as the TWU's response time had elapsed.

• [5] On 12 August 2025, PFD provided their initial response to the UWU Application, objecting to proposed ballot questions 6 and 7. The Commission's Bargaining Support Team then directed the UWU to respond to the PFD's objections by no later than 3:00PM, Tuesday, 12 August 2025. On the same date at 2:15PM, UWU requested an extension as their representative was engaged in a separate proceeding at the time. At around 4:41PM, 12 August 2025 the Commission's Bargaining Support Team then replied, outlining that UWU's extension request was denied as it would restrict the Commission's ability to determine the PABO Application within the statutory requirement of 2 working days (as far as practicable) and that it would be referred to a Commission Member for determination as it was the end of the first working day for the UWU application.

• [6] At around 5:19PM, Tuesday, 12 August 2025, the Chambers of Deputy President Hampton wrote to the parties in both Applications and directed all parties to provide any additional submissions in response to PFD's objections in either application by 11:00AM Wednesday, 13 August 2025. At around 7:35AM, Wednesday, 13 August 2025, the then TWU's representative, provided written submissions in responses to the Respondent's objection to the proposed ballot questions in the TWU Application.

• [7] At 11:01AM, Wednesday, 13 August 2025, PFD informed the Commission that they now did not object to the proposed ballot questions in both PABO Applications. However, they now applied for the Commission to consider exercising its discretion, under s443(5) of the Act to extend the notice period referred to in s414(2)(a) from three to five days for both Applications. PFD provided submissions and a written witness statement from Mr Phill McInerney, PFD's State Operations Manager QLD along with this application. At around 12:14PM on the same date, the TWU changed the representative for this to an interstate TWU representative at short notice. Given this change and the new objection from PFD, the TWU requested for an extension of time to prepare and file any evidence in response to PFD's application for an extension of the notification period by 11:00AM, Thursday, 14 August 2025.

• [8] At 12:01PM, Wednesday, 13 August 2025 the Chambers of Deputy President Hampton wrote to the parties in both applications and informed them that both matters would be reallocated to another member for determination. That correspondence noted that there was a Public Holiday for the Brisbane CBD region that day. At 1:39PM, on the same date, the Chambers of Deputy President Hampton wrote to the parties outlining that the Unions' further materials in PFD's application for extension of notification period were due at 11:00AM, Thursday, 14 August 2025.

• [9] My Chambers was allocated both of these matters on the afternoon of Wednesday, 13 August 2025.

• [10] At 5:45PM, that same day, despite my Chambers being on a public holiday and parties being instructed that they would receive further instruction the next day before reallocation, to ensure these matters were dealt with as soon as possible, my Chambers wrote to the parties providing earlier further instructions. These instructions included that these matters would be jointly listed for Conference and Hearing at 8:30AM, Friday, 15 August 2025 via Microsoft Teams, a direction that any parties (not just the unions) are required to file any further material in support or opposing the 2 applications by 11:00AM, Thursday, 14 August 2025, a direction if there were any objections to the matters being jointly listed, they were to raise the objections by 10:00AM, Thursday, 14 August 2025. The parties were additionally encouraged to engage in further discussion to resolve outstanding issues. At 6:14PM on the same date, a Notice of Listing for the Conference and Hearing was then issued to parties.

• [11] At 10:42AM, Thursday, 14 August 2025, the TWU sought leave to amend the TWU Application to seek a ballot period of 8 working days, rather than 10 days.

• [12] At 10:59AM, Thursday, 14 August 2025, PFD advised that they did not agree to the TWU's request, submitting that the delays that have occurred have been as a result of the TWU and UWU requesting extensions of time to provide their submissions and responses, or their employees who have carriage of the matter, not being available. PFD submitted the ballot period of 10 days should remain.

• [13] At 11:00 AM, Thursday, 14 August 2025, the UWU provided submissions in relation to PFD's application for an extension of the notification period and adopted the TWU's request for an amendment of the ballot period in the UWU Application and provided the witness statement of Mr Timothy Sobek, UWU Organiser for the Food and Beverage Portfolio.

• [14] At 11:01AM, Thursday, 14 August 2025, the TWU provided submissions in reply in relation to PFD's application for an extension of the notification period and the TWU's request for an amendment of the ballot period in the TWU Application.

• [15] At 11:27AM, Thursday, 14 August 2025, the TWU outlined that they intended to make further submissions at the Friday listing on the amendment of the ballot period.

• [16] At 11:40AM, Thursday, 14 August 2025, the UWU outlined that they refuted PFD's assertions that the delays were caused solely by the Unions, instead submitting that the predominant reason for the delay in the PABO applications being determined, rested solely on PFD, due to their prior and current objections.

• [17] I jointly listed the matters for urgent Mention at 5:00PM, Thursday, 14 August 2025 via Microsoft Teams. Ms Sophia Nasser; TWU Legal Officer, Mr Gavin Webb; TWU Chief Legal Officer and Mr James Wilkinson; TWU Organiser attended the urgent Mention for the TWU. Mr Thomas Nordin; UWU Industrial Officer attended for UWU. Mr Warren Cruse; PFD's National Employee Relations Manager attended for PFD. I was informed by the parties that there had not been any attempts to engage in further discussion to resolve the outstanding issues before the urgent Mention. At the urgent Mention, the parties were unable to agree to a consent position on either the ballot period or PFD's application to extend. Given the outcome of the urgent Mention, I decided to amend Friday's listing to be a Hearing only, and for it to commence at 8:00AM, Friday, 15 August 2025. My Chambers issued an Amended Notice of Listing reflecting this.

• [18] At this morning's hearing, Ms Sophia Nasser; TWU Legal Officer, and Mr James Wilkinson; TWU Organiser attended the hearing for the TWU. Mr Thomas Nordin; UWU Industrial Officer attended for the UWU. Mr Warren Cruse; PFD's National Employee Relations Manager attended for PFD. Witness Mr Timothy Sobek, UWU Organiser for the Food and Beverage Portfolio provided evidence on behalf of the Unions and was cross-examined. Witness Mr Phill McInerney, PFD's State Operations Manager QLD provided evidence on behalf of PFD and was cross-examined. The TWU provided closing submissions on behalf of both Unions and PFD provided closing submissions.

• [19] I reserved my decision on these outstanding matters (ballot period amendment and extension of notification period) at the conclusion of the Hearing.

• [20] The UWU submitted that the Commission should exercise is discretion under s443(3) by varying the draft orders from 10 working days to 8 working days. The UWU submitted that under s441 of the Act, the Commission ordinarily must determine a PABO application within 2 working days as far as practicable. The UWU submitted that whilst recognising the impact of the EKKA Public Holiday on whether this application was determined within 2 days "as far as is practicable," the Applicant submitted that the Commission does not ordinarily recognise state and territory Public Holidays by determining the date where something must be done, as it is only national Public Holidays where the Commission is closed in all states and territories that may impact the timeframe.

• [21] The UWU referred to the Commission's Full Bench decision in CEPU v Nilsen (NSW) Pty Ltd.[3] UWU submitted that the Full Bench in that decision confirmed:

"The Commission must determine the ballot period in each as a matter of discretion is not bound to grant the date proposed in the application and draft order, or that proposed by the employer.

Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as possible. This focuses attention on the process of conducting the ballot. "Expeditiously" connotes quickly and efficiently and the notion of "practicable" means that something can be done or put into practice successfully. This provision does not require the Commission to ensure the ballot closes as quickly as possible.

There are a range of case specific circumstances, including matters such as the capacity for the ballot to be properly conducted and the views and circumstances of the parties, including the size and nature of the workforce and ballot process itself, that are or may be relevant to the exercise of the discretion to set the ballot period. Within the framework of enabling the ballot to be conducted as expeditiously as practicable, the implications of the requirement to order attendance at, and to conduct, the s.448A compulsory conciliation conference during the ballot is also a relevant statutory context and consideration in setting that period. This is reinforced by the potential consequences of non-attendance by a bargaining representative at such conference, the legislative purpose of s.448A within the scheme of the Act, and the practical consequences of arranging and conduct the conference at which all bargaining representatives can attend and fully participate and where the Commission can deploy the range of dispute resolution techniques contemplated by the Act."

• [22] The UWU submitted that it has asked the relevant ballot agent whether 8 working days from the date of the PABO is sufficient time for the ballot agent to ensure all necessary actions can be taken, and sufficient time for voting allowed. The ballot agent confirmed that it can comply with all requirements if the voting period closes 8 working days from the date of the PABO.

• [23] PFD submissions on this issue were outlined in its email reply at 10:59AM, Thursday, 14 August 2025, where it did not agree to the TWU's request to amend the ballot period, submitting that the delays that have occurred have been as a result of the TWU and UWU requesting extensions of time to provide their submissions and responses, or their employees who have carriage of the matter, not being available. PFD submitted to maintain a ballot period of 10 days. This was reiterated in PFD's closing submissions during the Hearing where it outlined a chronology and submitted that it is not the fault of PFD that the process has availed itself to what has occurred. In relation to the submission that the objections of PFD were a factor in the delay, PFD submitted they have every right and entitlement to press those objections. Finally, PFD submitted that their submission for the Commission to not reduce the ballot period from 10 to 8 working days is not an alternative objection but part of their ability to raise concerns and allow the Commission to exercise it discretion.

• [24] In relation to the Ballot Period Amendment, at the Hearing, the TWU confirmed that it adopted UWU's submissions on 8 working days for the ballot period. At the Hearing in final reply to the PFD's submission on the ballot period, the TWU submitted that PFD had acted unreasonably in the way they initially put those objections, that PFD withdrew the objections at a late stage; once submissions and materials had been prepared by the parties and then sought to advance an alternative application that could have been made initially with those initial objections without notice. The TWU submitted that this was the reason for the unnecessary delay. The TWU submitted that they understood the concerns of the Commission in relation to the s448A conference but notwithstanding, they refute the submission that the delay is somehow at the feet of the Unions.

• [25] I adopt the principles outlined in CEPU v Nilsen (NSW) Pty Ltd,[4] as stated in the UWU's submission.

• [26] These principles will now be applied to the circumstances in these current matters.

• [27] Both PABO Applications filed by the Unions sought a ballot period of no later than 10 working days from the day the order is made. On Thursday, 14 August 2025, the Unions sought leave to amend their applications, pursuant to s586 of the Act to seek a ballot period of 8 working days from when the order is made, on the grounds that they had anticipated the order would have been made within 2 days.

• [28] Whilst I do not accept that s441 provides a statutory requirement to issue orders within 2 days, I do accept that the Commission is required to ensure the ballot is conducted expeditiously. PFD's objections in this regard focused on the reason for these delays, rather than providing any evidence to suggest the amendment sought would change the nature of the application. Similarly, they did not lead any evidence with respect to the requirements of s443(3A), nor did they suggest that they would suffer any prejudice if it was to be granted.

• [29] Notwithstanding the above, s443(3A) requires that the order must specify a date that will allow the ballot to be conducted as expeditiously as possible. However, in exercising the discretion in s443(3A), the Commission may also have regard to the requirements in relation to conducting the compulsory post ballot order conciliation conference pursuant to s448A of the Act. This includes the obligation to provide sufficient notice of the conference to those who are directed to attend, some lead time for preparation and compliance with any pre-conference directions, and the capacity of the Commission to conduct such a conference in a meaningful manner as contemplated by the scheme of the Act.

• [30] Considering the above, I have determined that for the purposes of s443(3)(c) of the Act, the date by which voting is to close on both of the PABOs in these matters is Friday, 29 August 2025. This also establishes the ballot period for the purpose of s448A(2) of the Act.

Extending the Notification Period of Taking Industrial Action - Section 443(5) and Legal Principles

• [31] Section 443(5) of the Act[5] provides as follows:

"If the FWC is satisfied, in relation to the proposed industrial action that is 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 than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days."

• [32] The Full Bench in National Tertiary Education Union v Charles Darwin University[6] set out a three-step process to be applied by the Commission when considering whether to extend a notice period in accordance with s443(5). As summarised, by Commissioner Allison in Application by CEPU v CSF Proteins Proprietary Limited T/A CSF Proteins Pty Ltd, the 'three step test' involves:[7]

"[9] First, the Commission must identify whether exceptional circumstances exist in relation to the proposed industrial action. The determination of whether the circumstances in a particular case are exceptional involves an evaluative judgement.[8] To be exceptional circumstances (which may include an individual factor or a combination of factors) "circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare."[9]

[10] The requirement for there to be "exceptional circumstances" imposes a high bar on the exercise of the Commission's discretion in s.443(5) to extend the notice period and indicates that ordinarily there should be no extension.[10] The Commission has recognised that that the statutory requirement that employees give 3 working days' written notice of industrial action "should not lightly be curtailed" by the imposition of a longer period of notice.[11]

[11] Second, even in the event exceptional circumstances exist, the Commission must consider whether the exceptional circumstances justify a longer notice period. This also requires an evaluative judgement based on the evidence.[12]

[12] The notion of justification must be understood in relation to the purpose of the notice required by s.441. In considering the notion of justification under s.443(5), Lawler VP in CEPU v Australian Postal Corporation[13] held:

"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."

[13] Third, if the Commission is satisfied that exceptional circumstances exist that justify a longer period of notice, the Commission must then consider whether to exercise the discretion to extend the notice period, and what the notice period should be in the circumstances (up to a maximum of seven days).[14]"

• [33] These principles will now be applied to the circumstances in this current matter.

Submissions on Extension of Notification Period

• [34] PFD argued that exceptional circumstances exist justifying an extension of time (individually and collectively) and relied on the evidence of Mr Phill McInerney, PFD's State Operations Manager QLD, which also include the Northern NSW distribution centre (DC).[15] Mr McInerney submitted that the Queensland DC network includes 2 major sites in Brisbane (Brisbane DCs), that are relevant to this proposed enterprise agreement, and collectively hold approximately 8,000 stock units (SKUs) at any one time.

• [35] Mr McInerney submitted that the regional DCs are situated in remote locations including St George, Longreach, and Mt Isa, along with other towns that are currently serviced by other major foodservice operators and submitted that these regional DCs play a crucial role in sustaining food supply lines to isolated and otherwise underserved communities. Mr McInerney submitted that, across Queensland and the Northern NSW region, PFD supplies a diverse customer base, including aged care facilities, hospitals, correctional institutions, schools, childcare centres, and other organisations providing meals to vulnerable persons within the community.

• [36] Mr McInerney submitted the regional DC locations each hold between approximately 800 and 2,000 SKUs, adjusted according to customer demand and supply chain planning. Mr McInerney submitted that the regional DCs depend on frequent stock replenishment, receiving deliveries three to five times per week from the Brisbane DCs to ensure continuity of supply. Mr McInerney submitted that primarily a road transport fleet was used to distribute products between Brisbane DCs and regional DCs. Mr McInerney submitted that the operational complexity of the distribution network was heightened by the need to transport chilled and frozen products safely over long distances to remote destinations, complying with all cold chain and food safety regulations. Mr McInerney submitted that PFD, as one of the only foodservice distributions accessing some of these remote communities, provided an essential service, sustaining the ongoing provision of nutritious food to institutional and community-based customers throughout Queensland and Northern NSW.

• [37] Mr McInerney submitted evidence on the consequences that could occur if either or both Brisbane distribution centres experienced operational downtime or were unable to supply stock, in that case, he said, the Queensland regional DCs would be required to source product from interstate facilities, most commonly via distribution centres located in Sydney and Melbourne. Mr McInerney submitted that reliance on interstate supply introduces additional logistic complexity and increases the usual lead time for deliveries to regional DCs by approximately two to three days, compared to supply sourced from the Brisbane DCs. Mr McInerney submitted that extended lead times caused by the Brisbane DCs downtime can have significant operational and community impacts, including:

"Increased risk of delayed deliveries to aged care facilities, hospitals, and correctional institutions, potentially disrupting meal services for vulnerable populations.

Greater risk of cold chain breaches due to extended transit times for chilled and frozen products.

Reduced flexibility to respond to sudden changes in demand or emergency supply requests n remote communities."

• [38] Mr McInerney submitted many of the regional DCs operate in isolated locations without an alternative major foodservice provider, as such any sustained supply disruption from Brisbane could have direct and immediate consequences for community nutrition, health services, and institutional meal provision within their respective regions.

• [39] PFD's written submissions did refer to the principles outlined in National Tertiary Education Union v Charles Darwin University.[16] PFD also submitted that 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.[17]

• [40] PFD submitted several decisions where the Commission extended the notification period for protected industrial action in the supermarket industry.[18] PFD specifically referred to Deputy President Bull's decision in Application by the AMIEU,[19]

"[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... (emphasis added)"

• [41] PFD also referred to Deputy President Wright's decision in TWU v Virgin Airlines Pty Ltd,[20] whereby the Deputy President declined to grant an extension to the notice period on the evidence, however, noted that the impact on third parties, in combination with peak/holidays seasons, was considered exceptional:

"[97] The requirement for exceptional circumstances calls for the particular facts and circumstances of a case to be considered and an evaluative judgement to be made. In considering whether there are exceptional circumstances with respect to Questions 1, 2, 4 and 5, I have had regard to all of the circumstances of the case. There is no dispute between the parties that the classes of employees covered by the application have not previously taken protected industrial action. The action may be taken by employees in numerous ground handling ports with the result that it may impact multiple flights in multiple locations around Australia including regional and remote areas. The action, if taken, will occur during peak season which may include the Christmas/festive and school holiday season. If stoppages occur, thousands of passengers are likely to be affected by delayed or rescheduled flights as well as flight attendants and pilots employed by Virgin. In my view none of these factors by themselves are of particular significance. The fact that the proposed protected industrial action may adversely impact third parties is not "out of the ordinary course", "special", "rare" or "uncommon" such as to constitute the requisite exceptional circumstances. However I believe that when viewed together this combination of factors produces a situation which I regard as exceptional."

• [42] UWU submitted that exceptional circumstances that justify the increase of the written notice period to 5 days do not exist in the current circumstances and that the Commission should make the PABO in the terms sought by UWU. It is submitted that PFD bears the onus to lead sufficient evidence to demonstrate the existence of exceptional circumstances and must establish those circumstances justifying extending the notice period for taking protected action. UWU submitted that PFD has not provided any evidence with respect to there being exceptional circumstances, rather, the only evidence that PFD has submitted are its general concerns that the industrial action will be highly disruptive.

• [43] UWU submitted with respect to the third step of the 'three step test', that prior Commission decisions have also accepted the exercise of the discretion to extend the notification period interferes with the statutory right of Union Applicants to otherwise provide 3 working days' written notice of industrial action, that such discretion "should not be exercised lightly."[21]

• [44] UWU submitted that PFD's citation on Deputy President Bull's decision in Application by the AMIEU[22] could be distinguished and could not be relied on by PFD because:

a) A fundamental reason for the order of a longer notice period was because the period was during the Easter holidays (30 March 2015 - 7 April 2015). It was found that the holiday period significantly increased the risk for spoilage, the nature of the holiday periods results in people buying larger quantities of food; and

b) That that particular decision noted it made the decision based on the notice period of 5 days being agreed as a consent position between the parties, which has not occurred in the current circumstances.

• [45] UWU submitted that PFD's citation on Deputy President Wright's decision in Transport Workers' Union of Australia v Virgin Airlines Pty Ltd[23] could be distinguished and that facts in that case were more exceptional than the current circumstances, which weigh towards a finding that no exceptional circumstances exist which justify an extension of the notice period. These include that proposed industrial action in that case would have affected 5 metropolitan airports across the country in the immediate lead up to Christmas, which is not the case in the current circumstance.

• [46] UWU submitted that each of the cases that PFD had referred to in their submissions could be distinguished and did not fall within the current circumstances.

• [47] UWU submitted that exceptional circumstances do not exist for PFD for the following reasons and those reasons relied on the evidence of Mr Timothy Sobek, [24] UWU Organiser for Food and Beverage Portfolio. Mr Sobek was a PFD employed nominated bargaining representative during the 2018-2019 enterprise bargaining and was an employee of UWU during the 2022 enterprise bargaining:

(a) Wastage can be mitigated by diverting chilled, fresh and perishable goods to other distribution centres around Brisbane and New South Wales and Victoria, and to stores. If even part of the product was diverted it would significantly reduce wastage.

(b) A degree of wastage is not uncommon, and PFD has significant experience in managing business disruptions which may cause wastage, such as natural disasters, road closures and power outages;

(c) A degree of wastage must be balanced against the right of employee to give three working days' notice of industrial action, which is a standard that should not be departed from lightly.

(d) Wastage can be mitigated by engaging labour hire workers to manage the core functions in the chilled and fresh sections of the distribution centre.

Regional communities, third parties and depletion of stock

(e) PFD services many regional communities, however smaller communities which generally, if not always, have additional foodservice operators, and many specialise in delivering across all of Queensland or to remote communities including:

(f) The Respondent claims that industries including health care, aged care, childcare, corrective service in remote locations are serving vulnerable members of the community and that without the additional notice period they would be at risk.

(g) It is not uncommon or out of the ordinary for people of regional communities to have to travel short distance to other communities to purchase groceries or to engage other services such as medical care, pharmacies or education providers. This may be inconvenient, but it is not exceptional. When it comes to services provided in regional communities, due to limited options, it is reasonable to claim that the Respondent could provide warning to these customers and that they would have additional suppliers if needed.

(h) If the period of notice is extended then the effectiveness of industrial action will be reduced, which will likely cause any industrial action to go for a longer period. If the action goes for a longer period, then PFD distribution centres in regional communities will experience depletion of stock more intensely for a longer period.

(i) The UWU submits that the detrimental impact of industrial action on third parties is ordinary and common and is a necessary part of the purpose of the industrial action which is to leverage employee bargaining power to further the employee's claims.

(j) The Respondent uses Cannon Logistics, a third-party company to deliver stock from the Brisbane distribution centres to regional areas. If protected industrial action is taken at the Brisbane distribution centres, if the Respondent can employ labour hire workers to pack the trucks, the work of delivering the stock by the truck should not be impacted by the protected industrial action, neither should the uploading of the truck at the regional site, due to the regional site not being part of the bargaining process."

• [48] The TWU submitted that the Respondent bore the onus of demonstrating that exceptional circumstances exist to justify an extension of the default notice period for protected industrial action. The TWU submitted that PFD had failed to discharge this onus.

• [49] In closing submissions at the Hearing for itself and on behalf of the UWU, the TWU submitted that discretion under s443(5) of the Act was not a discretion that is to be exercised lightly, as the legislation has sought to set a statutory default of 3 working days' notice for industrial action and that is specifically because any extension undermines employees bargaining power, which is a central consideration which the Commission must weigh carefully.

• [50] The TWU submitted that PFD had not established exceptional circumstances. The TWU submitted that PFD's submissions attempt to conflate business and operational inconvenience with exceptional circumstances. The TWU submitted that exceptional circumstances do not exist merely because negative consequences may flow from protected industrial action to PFD or third parties. Further, TWU submitted that during cross-examination, it was clear that PFD's witness, Mr McInerney had never managed operations during protected industrial action at the relevant sites and his predictions are submitted to be completely theoretical.

• [51] In relation to PFD's submissions regarding the regional impact in the locations that PFD submitted as 'vulnerable communities', the TWU submitted that the majority of PFD's case on this issue rested on assertions and assumptions that regional communities will be affected. The TWU submitted that Mr McInerney admitted that he was not aware of anyone at PFD that had spoken to any of these communities or any of these customers to confirm these alleged impacts, nor was he aware of any contingencies that these vulnerable communities have in place. The TWU submitted there is no circumstance in which evidence based on assumption can be probative evidence of exceptional circumstances.

• [52] The TWU also submitted that PFD had not differentiated between the types of action proposed in both of the respective Applications, particularly considering that some of the actions notified in the TWU Application are a ban on the performance of work, if employees are not wearing TWU branded clothing. The TWU has submitted that the fact that PFD maintain and press the 5 day blanket extension for all action is further proof that PFD's application to extend the notification period is not based on genuine exceptional circumstances.

• [53] The TWU also noted in its written submissions that matters [2022] FWC 1630[25] and [2022] FWC 1634[26] were applications for protected action ballot orders in respect of the same enterprise agreement and same sites to which the current application relates. The TWU submitted that if PFD genuinely believed that the nature of the operations of the 2 relevant distribution centres required longer notice periods to protect vulnerable customers, one would expect it to have sought similar extensions with respect to similar orders sought in the past. The TWU submitted that the absence of such applications indicates that the risks now being emphasised - such as perishable goods wastage and supply chain disruption - are not unique to the Brisbane facilities but are inherent to the PFD's business model. The TWU submitted the fact that PFD has previously managed these risks without extended notice suggested that its current application is motivated by tactical considerations rather than by any new or exceptional circumstances.

• [54] In relation to contingency planning, the TWU noted that PFD had not provided any specific or concrete evidence regarding the commencement of any pre-planning for contingencies prior to the respective applications being made and Mr McInerney did not outline any details of dialogue between PFD and its clients about potential mitigation measures, even though PFD have been in a bargaining period and a PABO application was likely to have been made.

• [55] During the Hearing, the TWU highlighted Mr McInerney's evidence that additional measures could have already been underway, including contacting and discussing potential increases in labour hire employees at the site, or at least having those on standby in the event that protected industrial action was notified. The TWU noted that the fact these contingency options were available to PFD to start exploring at the commencement of this round of bargaining in March 2025, weighs strongly against the granting of any extension of the notification period.

• [56] The TWU submitted that the purpose of a notification period is to allow an employer to take defensive action, it is not and has never been, to guarantee uninterrupted operations as outlined in s414(2) of the Act. By virtue of its existence in the Act, protected industrial action is designed to cause disruption. The TWU submitted that any extension of the notification period would diminish the effectiveness of the employees bargaining power and that consideration should weigh against the granting of any extension.

• [57] Lastly, the TWU submitted that the case submitted by PFD is a 'convenience case', it is based on speculative assertions. There has been no real-world operational experience or evidence provided and no concrete evidence of actual pre-planning of contingencies or dialogue. The TWU stated that PFD have in no way justified an extension of the notification period, and as such, their application should be dismissed and the statutory notification period should be maintained.

Consideration - Are There Exceptional Circumstances?

• [58] While I accept PFD's submissions that they do service vulnerable customers and communities, there is no evidence before me, other than mere assertions and hypotheticals to suggest that these customers or communities would be significantly impacted by short delays in the lead time or that a 5 day notification period would make a difference as opposed to the statutory 3 day notification period. This was further reinforced when under cross-examination, Mr McInerney admitted that he did not know if anyone at PFD had spoken to any of these communities or customers to confirm these alleged impacts, and further whether or not these customers or communities may have contingencies or other plans that could be put in place in such circumstances.

• [59] I accept UWU's submission that each of the cases that PFD had referred to in their submissions, in terms of an extended notification period being granted in the supermarket industry, could be distinguished and did not fall within the current circumstances.

• [60] I accept the TWU's submissions, that PFD's written material and the evidence provided by Mr McInerney seem to conflate business and operational inconvenience with exceptional circumstances. This was evident by Mr McInerney's evidence which suggested that they had explored only one potential contingency in the event of notification of industrial action, being that products would need to be sourced from interstate DCs and thereby causing the disruption in the supply. Yet, when I asked Mr McInerney at Hearing about any additional measures that could be utilised, including contacting and discussing potential increases in labour hire employees at the site, or at least having those on standby in the event that protected industrial action was notified, Mr McInerney confirmed that PFD had arrangements with labour hire companies, but no such contact has been made. This is despite the fact that PFD would have been aware of the potential ability and the statutory right of the Unions to make PABO applications since this round of bargaining commenced in March 2025.

• [61] I am not satisfied on the evidence before me that exceptional circumstances exist in relation to the proposed industrial action.

• [62] The requirement for "exceptional circumstances" imposes a high bar on the Commission's discretion under s443(5). For the reasons given above, I am not satisfied that there are exceptional circumstances justifying the period of written notice being extended, and accordingly I will not exercise my discretion under s443(5) of the Act.

• [63] On the basis of the material before me, including the declaration of James Wilkinson, TWU Organiser and Timothy Sobek, UWU Organiser for the Food and Beverage Portfolio, setting out the steps taken by TWU and UWU in bargaining with the Employer and that the Unions have been, and are, genuinely trying to reach agreement with PFD, I am satisfied that there is a notification period in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [64] The ballots relating to the TWU PABO are to be conducted by Democratic Outcomes Pty Ltd Trading as CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s468A of the Act and consequently is authorised to conduct the ballot.

• [65] The ballots relating to the UWU PABO are to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s468A of the Act and consequently is authorised to conduct the ballot.

• [66] For the purposes of s443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 29 August 2025.[27] This also establishes the ballot period for the purpose of s448A(2) of the Act.

• [67] Orders have been separately issued in PR790769 and in PR790770.

• [68] A compulsory s448A conciliation conference will be listed at a date to be confirmed. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at this conference. Directions will be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[3] [2023] FWCFB 134, [52],[58] and [79].

[4] [2023] FWCFB 134, [52],[58] and [79].

[5] Fair Work Act 2009 (Cth), s443(5).

[6] [2018] FWCFB 4011.

[7] [2024] FWC 2260, [7]-[13].

[9] CEPU v Australian Postal Corporation [2007] AIRC 848, [10].

[11] National Tertiary Education Union v Charles Darwin University [2018] FWCFB 4011, [20].

[13] CEPU v Australian Postal Corporation [2007] AIRC 848, [21].

[14] National Tertiary Education Union v Charles Darwin University [2018] FWCFB 4011, [25].

[15] Exhibit PFD-1, Statement of Mr Phill McInerney, State Operations Manager QLD - PFD, dated 13 August 2025.

[16] [2018] FWCFB 4011.

[17] CEPU v Australian Postal Corporation [2017] AIRC 848, [10].

[18] Application by the AMIEU [2015] FWC 1567; United Workers' Union v Woolworths Group Limited and Queensland Properties Investments Pty Ltd [2022] FWC 2821; United Workers' Union v Woolworths Group Limited T/A Primary Connect - Perth Regional Distribution Centre [2022] FWC 2977; United Workers' Union (108V) v Coles Group Supply Chain Pty Ltd [2020] FWC 4260; AMIEU v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd [2012] FWA 2730; AMIEU v Coles Supermarkets Australia Pty Ltd [2014] FWC 8871.

[19] Application by the AMIEU [2015] FWC 1567, [28].

[20] Transport Workers' Union of Australia v Virgin Airlines Pty Ltd [2023] FWC 2894.

[21] CFMMEU v DP World Brisbane Pty Ltd T/A DP World and Others [2019] FWC 908, [44].

[22] Application by the AMIEU [2015] FWC 1567, [28].

[23] Transport Workers' Union of Australia v Virgin Airlines Pty Ltd [2023] FWC 2894.

[24] Exhibit UWU-1, Statement of Mr Timothy Sobek, UWU Organiser for Food and Beverage Portfolio, dated 14 August 2025.

[25] Transport Workers' Union of Australia v PFD Food Services Pty Ltd [2022] FWC 1630.

[26] United Workers' Union v PFD Food Services Pty Ltd [2022] FWC 1634.

[27] This is, in effect, 10 working days from the making of the Order and was the period initially sought in the Applications.

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