JBS Australia Pty Limited - [2012] FWA 8788

[2012] FWA 8788

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

JBS Australia Pty Limited
(AG2012/10063)

JBS AUSTRALIA PTY LIMITED - ROCKHAMPTON ENTERPRISE AGREEMENT 2012

Meat Industry
COMMISSIONER RIORDAN	SYDNEY, 16 NOVEMBER 2012

Application for approval of the JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2012.

[1] JBS Australia Pty Limited (JBS) lodged an application for approval of the JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2012(the Agreement) pursuant to Section 185 of the Fair Work Act 2009 (the Act). The Agreement was intended to apply to the JBS abattoir at Rockhampton. The negotiations for the Agreement were quite lengthy and were subject to protected industrial action by both JBS and the Australasian Meat Industry Employees Union (AMIEU), which opposed the application.

[2] The ballot for the Agreement was conducted by the Australian Electoral Commission (AEC) on 13 and 14 July 2012. There was a very high employee turnout with a narrow majority of employees in favour of the Agreement. The AEC has advised that 387 of the 474 eligible employees covered by the Agreement voted. Of the employees that voted, 194 employees voted to accept the Agreement, 187 opposed the Agreement and six cast informal votes 1.

[3] JBS relied on sworn affidavits from:

Mr Jason Reabel,

Ms Jeongmin Oh,

Mr Changmin Lee,

Mr Vagner Lira,

Mr Graham Ford and

Mr Michael Fliender.

[4] JBS argued that it had consulted widely and appropriately with all staff, that each of the pre approval steps had been met and that the employees had supported the Agreement, albeit by a slight majority.

[5] The AMIEU relied on sworn affidavits from:

Mr Paul Trevor Jenson,

Mr William Jean Sardinha,

Mr Bruce Applewaite,

Mr Lisa Anne Keune and

Mr Greville Francis Sexton.

[6] The AMIEU argued that JBS had failed to meet a number of the necessary pre approval steps required pursuant to the Act and that the Agreement fails the Better Off Overall Test (BOOT).

[7] It is essential that Fair Work Australia (FWA) undertake its assessment with a practical and non technical interpretation of the Act. It is important to ensure that the parties to the agreement have all been treated fairly, reasonably and appropriately throughout the process.

[8] The Notice of Employee Representational Rights (NERR) is an important first step in the process. The parties have conflicting views as to whether or not an appropriate NERR was issued. JBS submitted that the NERR was posted on various Notice Boards around the abattoir.

[9] I am satisfied and find that a NERR was issued by the company either by placing it on various Notice Boards around the facility or by attaching it to an employees’ pay slip many months earlier. However, I am not satisfied that requirements of either s173(1) or (4) in relation to reasonableness have been met.

“173 (1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JBS Australia Pty Limited [2012] FWA 8788
Case: [2012] FWA 8788
Decision Date: 16 NOVEMBER 2012

CaseChat Overview and Summary

JBS Australia Pty Limited sought approval of the JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2012 from the Fair Work Commission. The dispute arose from the company's attempt to formalise employment terms for its workers at the Rockhampton site. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009 and was fair and reasonable in the context of the broader industrial relations environment.

The primary legal issues before the Commission included whether the agreement complied with the formal requirements of the Act, whether it was genuinely an enterprise agreement, and whether it contained terms that were fair and reasonable. The Commission examined the negotiation process, the content of the agreement, and whether it was consistent with the principles of procedural and substantive fairness. Particular attention was given to whether the agreement adequately covered the specified bargaining unit and whether the terms were balanced and not overly disadvantageous to employees.

The Commission concluded that the agreement substantially complied with the legislative requirements and was genuinely an enterprise agreement. It found that the negotiation process was procedurally sound, and the terms of the agreement were fair and reasonable. The Commission noted that while some terms were less favourable than the relevant award, they were not considered unreasonable in light of the overall context and the legitimate business needs of the company. The application was thus approved, and the agreement was registered.

The Commission's final orders included the approval and registration of the JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2012. The agreement was to take effect from the date of the decision and was to be applied to the relevant employees at the Rockhampton site.

Orders