Fair Work Act 2009

s.437 - Application for a protected action ballot order

Proposed protected action ballot of employees of Metcash Trading Pty Ltd

• [1] This decision relates to two applications that have been brought by the United Workers Union (UWU) under s.437 of the Fair Work Act 2009 (Cth) (Act) for protected action ballot orders in respect of employees of Metcash Trading Pty Ltd (respondent, or Metcash). The applications cover two different groups of employees engaged at the same workplace at Huntingwood in Sydney. Those employees are presently covered by the terms of one or other of two agreements, the Metcash Trading Limited Huntingwood Fresh Produce Enterprise Agreement 2021 and the Metcash Trading Limited Huntingwood Enterprise Agreement 2022. The nominal expiry dates for these agreements have passed. Negotiations for agreements to replace these agreements have been taking place for some time, but as yet, replacement agreements have not been finalised. Given the status of the negotiations, the UWU has now sought protected action ballot orders to authorise the taking of protected industrial action to advance its claims in those negotiations. The two matters were listed and heard together without objection on 14 September 2025.

• [2] In the case of each application, Metcash makes no submission as to whether or not orders should be made. However, Metcash argued that in both cases, the minimum prescribed[1] notice period for the proposed protected industrial action of three working days should, in accordance with s.443(5), be extended for all forms of the proposed action to seven working days because the Commission could be satisfied that there are exceptional circumstances justifying such an extension. That proposition was opposed by the UWU.

• [3] The only evidence given in relation to the extension of the notice period was given by Mr. Mortimer, the respondent's General Manager NSW/ACT. Mr. Mortimer was not cross-examined, and his witness statement was admitted without objection.

• [4] Mr. Mortimer described Metcash's business as being wholesale distribution and marketing for independent retailers across the food, liquor and hardware sectors throughout Australia. Metcash has five major distribution centres situated in each of New South Wales, Victoria, Queensland, South Australia and Western Australia. These centres service a network of independent supermarkets, convenience stores and liquor outlets that number in the tens of thousands nationally and which vary in size.

• [5] Metcash's Huntingwood site in Western Sydney is one of its largest logistics hubs. It is designed to handle high volume storage, order and dispatch operations. It is the main distribution point for customers in New South Wales and the Australian Capital Territory and a critical node in the respondent's national supply chain. There are 483 employees at the site of which 119 are employed on a casual basis. They are employed in a range of functions including unloading product, forklift driving and loading of trucks.

• [6] Approximately 48% of grocery stores in Metcash's NSW/ACT customer network are in regional and remote areas. In many of these areas the Metcash-supplied supermarket is the only such store in the area and the nearest alternative store is hundreds of kilometres away. Deliveries to stores from the Huntingwood facility takes place from one to four times per week. Deliveries to some stores includes perishable goods.

• [7] Mr. Mortimer gave evidence that if Metcash's NSW/ACT customer network could not be serviced from the Huntingwood facility, Metcash would be largely required to service those customers from its interstate distribution centres. He said that depending on the extent of the protected action taken, Metcash would be required to secure additional casual staff and temporary agency employees to maintain supply to the network. Mr. Mortimer said it was envisaged that any contingency workforce would only be able to support around 60% of the Huntingwood site's usual volume. He said the balance would have to be supplied by the Queensland and Victoria distribution centres with approximately 20% coming from each of those two states to deliver to regional stores closest to the respective borders. He said additional staff would be required in both states to deal with the surge in volume. Mr Mortimer said that the minimum three-day notice period would be insufficient having regard to the following:

'(a) new casual and labour-hire workers would need to be sourced from a talent pool and via a labour agency, which (Mr. Mortimer) understands will be more difficult to obtain at this time of year in the lead up to Christmas and through the summer period;

(b) these workers must be onboarded to Metcash's systems for compliance and payroll purposes and provided with induction and training to ensure safe work practices, which can typically take up to 1-2 weeks; and

(c) all impacted customers would need to be contacted and arrangements made for existing deliveries to be re-allocated and supplied through different channels.'

• [8] Mr. Mortimer also gave evidence as to effect of any loss or limitation of supply on both retailers and the communities that rely on them for the supply of essential goods, including fresh produce. He said that other small businesses such as cafes may rely on supermarket supply and that supply disruption could have a ripple effect. He referred to vulnerable persons, such as the elderly, being impacted if they had no means to travel elsewhere for grocery supplies. He referred to the possibility of customers turning to alternative suppliers and likely availability issues and higher cost. He also referred to additional transportation costs that may be incurred by customers in regional areas who arrange for alternative transportation from an interstate distribution centre and the increased risk of product spoilage because of the time taken to deliver from alternative distribution centres.

• [9] Metcash submitted that the extension was sought primarily because it needed as much time as possible in relation to the proposed protected action in order to ameliorate the impacts on remote communities serviced by its customer network. Further, Metcash said that the circumstances involved more than mere operational annoyance for them but would create supply chain disruption that had flow-on effects for independent retailers in their customer network and would have an adverse impact on regional communities including in relation to the supply of essential goods. Metcash submitted that the time-frame needed to 'on-board' additional contingency labour and the difficulty of obtaining such labour at the end of the year contributed to a conclusion that there were exceptional circumstances justifying an extension of the notice period.

• [10] The UWU submitted that it was a natural consequence of protected industrial action that an employer's operations would be adversely affected and that generalised predictions about potential consequences would be insufficient to establish the existence of exceptional circumstances. It was also submitted that Mr. Mortimer's evidence demonstrated that Metcash was well-equipped to take positive steps to mitigate any adverse impacts of protected industrial action and an extended notice period could not be justified in those circumstances. The UWU submitted that even if the Commission were satisfied that exceptional circumstances existed, the extension should be refused as a matter of discretion taking into account the negative impact an extension of the notice period would have on employee bargaining power.

443 When the FWC must make a protected action ballot order

(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 than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.

• [12] The principles for determining whether there are 'exceptional circumstances' for the purposes of s.443(5) are well settled. In Construction, Forestry, Maritime, Mining and Energy Union v. DP World Sydney Ltd[2] (DP World) the Full Court referred to previous authorities in which that expression had been considered, including the decision in CEPU v Australia Post[3] where Lawler VP, in dealing with equivalent provisions under predecessor legislation, cited with approval the decision in Ho v Professional Services Review Committee No 295[4]:

[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.

[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.

[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notice 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 diminutions 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] The Full Court in DP World noted[5] that the above statements were consistent with the observations of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection[6] where it was said that exceptional circumstances "need not be unique, or unprecedented, or very rare; but ... cannot be ... regularly, or routinely, or normally encountered".

• [14] In National Tertiary Education Industry Union v Charles Darwin University[7] (NTEU) a Full Bench of the Commission said that the making of an order to extend the period of notice for the taking of protected industrial action involves three steps:

[23] The determination of whether the circumstances in a particular case are 'exceptional' involves an evaluative judgement. A proper approach to the exercise of the Commission's discretion under s.443(5) requires first that a member 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. The phrase "exceptional circumstances" carries its ordinary meaning.

[24] Secondly, there must 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.

[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).

• [15] The Full Bench in NTEU also made it clear that the exercise of the discretion under s.443(5) to extend the notice period involves a departure from the default position and an interference with the statutory right to engage in protected industrial action on three days' notice. That this right should not be lightly curtailed was, according to the Full Bench, evident in the grant of the power to extend itself. It is not a general discretion to extend a notice period but one that is exercisable only where 'exceptional circumstances' justify such an extension.[8]

• [16] Adverse impacts on third parties are a common corollary of protected industrial action. In the DP World litigation, the Full Bench of the Commission concluded that although the impact of the proposed protected industrial action on third parties is undoubtedly a factor to be weighed in the determination of exceptional circumstances, a finding of exceptional circumstances purely on the basis of adverse consequences to third parties would have been an error had the Commission come to that conclusion at first instance.[9] As the Full Bench put it:

[17]....In our view, it is difficult to contemplate a situation where the taking of industrial action by employees in the form of a stoppage of work would not involve some impact, with cost implications, on third parties. Detrimental effects on suppliers, customers or subcontractors of the employer are an ordinary incident of the legitimate "duress" or "coercive influence" of protected industrial action. It has long been recognised that part of the purpose of the standard notice requirement for protected industrial action is to allow the employer to attempt to ameliorate the consequences for such third parties. For example, in relation to the equivalent provisions in the former Workplace Relations Act 1996, the Federal Court Full Court majority (Wilcox and Cooper JJ) in Davids Distribution Pty Ltd v National Union of Workers said (emphasis added):

"[87] We think s170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lockout some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees' notice of bans by giving notice of a lockout of some or all employees."

[18] Consequently on no basis could it be said that the simple fact that protected industrial action has effects upon third parties requiring ameliorative steps to be taken is "out of the ordinary course", "special", "rare" or "uncommon" such as to constitute the requisite exceptional circumstances. Were it otherwise, extensions to the standard notice period under s 443(5) would be granted as a matter of course.[10]

• [17] At this point it is not possible to determine the precise impact of the proposed protected industrial action on either the respondent or third parties. That will depend on a range of factors including the form of action that is ultimately undertaken, the number of persons engaging in the action, the duration of any action and the effectiveness of any mitigating steps put in place by the respondent. I note here that there was no evidence as to the likely number of persons that might engage in protected industrial action. I also note that in each case, the proposed action involves unlimited stoppages of work for various periods ranging from four hours to stoppages of indefinite duration. For the purposes of my present consideration, I assume that it is possible that all of these forms of protected action may ultimately eventuate. I also note that Mr. Mortimer's evidence was that he was concerned that an indefinite stoppage has the potential to place an unreasonable burden on vulnerable members of the community in remote areas and negatively impact on the financial and reputational standing of Metcash's customer network.

• [18] Metcash did not seriously contend that the impact of the proposed action on them constituted exceptional circumstances and in my view they do not. Nor was it suggested that any disruptions to supplies in the 52% of the respondent's customer network that are in metropolitan areas weighed in favour a finding that exceptional circumstances exist. However, the totality of the unchallenged evidence of Mr. Mortimer, including the nature and structure of the respondent's business, the potential impact of the action on remote communities, possible periods of no or limited access to essential groceries, household items and fresh produce and the lack of a proximate alternative supply source for people in those communities does, in my view, lead to circumstances which whilst not necessarily unprecedented or unique, are nonetheless not regularly or routinely encountered and which can be considered to be exceptional circumstances for the purposes of s.443(5).

• [19] However, in my assessment, whilst the circumstances as a whole may be considered exceptional, I do not consider they are circumstances which justify an extension of the notice period. It is apparent from Mr. Mortimer's evidence that effective mitigation measures can and will be put in place in response to any action taken. Mr. Mortimer said that depending on the extent of any action taken, a contingency workforce would be able to support 60% of the Huntingwood site's requirements while the balance of 40% would be serviced by interstate distribution centres of the respondent. It was not suggested that a proportion of the effects of any disruptions could not be effectively ameliorated at all. Moreover, Mr. Mortimer's evidence correctly acknowledges that any requirement to engage additional staff would depend on 'the extent of the action taken,' i.e. the type of action engaged in, and the number of persons who engage in it. The respondent nonetheless sought the same extension period irrespective of whether the action involved a single four-hour stoppage by a small number of workers or an indefinite and widespread cessation of work. To the extent that Mr. Mortimer described the need for additional time to be able to stand-up and expand a contingency workforce at Huntingwood and the Queensland and Victorian distribution centres, the respondent accepted that it had time available to it between now and the expiry of the ballot period to take steps to prepare for the proposed action and that it would be taking those steps.

• [20] Metcash couched the proposed extension of the notice period in terms of a necessary measure to ameliorate the effects of the proposed action on remote and regional communities. That would be achieved by reducing the impact of the action on the respondent itself. As the effects of any proposed action on the respondent are reduced, so the bargaining power of the employees is also diminished. This is a further relevant consideration that must be weighed in the balance. The proposed extension to seven days' notice for all of the proposed forms of protected industrial action would in my view, significantly reduce employee bargaining power and thereby shift the dynamics of the bargaining process in a way that cannot be justified by the circumstances. The three-day notice period prescribed by the Act gives the respondent a reasonable opportunity to prepare for the proposed action and should not be displaced. Having regard to all of the above matters I do not propose to extend the notice periods for the proposed protected industrial action as sought by Metcash in each of these applications.

• [21] I propose to approve the applications for protected action ballot orders. On the basis of the material before me, including the declarations of Sharon Eurlings, Organiser, setting out the background to the bargaining process, the steps taken by the UWU in bargaining I am satisfied that the UWU has been, and is, genuinely trying to reach agreement with Metcash. I am satisfied that there is a notification time in relation to each of the proposed agreements and that all of the requirements in s.443(1) of the Act have been met. I am also satisfied that the applications were provided to the employer and the ballot agent in accordance with s.440 of the Act.

• [22] The ballots are to be conducted by Fair Vote Services Pty Ltd (FVS). FVS has been approved[11] as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballots.

• [23] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting in each ballot is to close is 1 December 2025.[12] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Orders reflecting this outcome have been separately issued in PR793771 and PR793772

Mr Kux, of HMB Employment Lawyers, on behalf of Metcash Trading Pty Ltd

[1] Section 414(2)(a).

[2] [2019] FCAFC 99.

[3] [2007] AIRC 848.

[4] [2007] FCA 388.

[6] [2018] HCA 16

[7] [2018] FWCFB 4011.

[10] [2019] FWCFB 1150, citations omitted.

[11] [2024] FWC 1775.

[12] This is, in effect, fifteen (10) working days from the date of the Order, as sought in the application.

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