DECISION

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

JBS Australia Pty Limited
(AG2019/4966)

JBS AUSTRALIA PTY LIMITED - TOWNSVILLE ENTERPRISE AGREEMENT 2019

Meat Industry
COMMISSIONER BOOTH	BRISBANE, 6 MARCH 2020

Application for approval of the JBS Australia Pty Limited - Townsville Enterprise Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by JBS Australia Pty Limited (the Applicant) for approval of the JBS Australia Pty Limited - Townsville Enterprise Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 10 February 2020, raising concerns in relation to the Agreement.

[3] The Applicant provided submissions and signed undertakings addressing the concerns raised on 26 February 2020.

[4] The undertakings meets the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[5] It is noted that the consultation term at clause 10 of the Agreement does not appear consistent with the requirements of the Act. Accordingly, the model consultation term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Subject to the undertakings provided and the matter raised at paragraph [5], I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[7] The Australasian Meat Industry Employees’ Union (the AMIEU) filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the AMIEU.

[8] The Agreement is approved and, in accordance with clause 5 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 12 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

JBS Australia Pty Limited applied to the Fair Work Commission for approval of the JBS Australia Pty Limited - Townsville Enterprise Agreement 2019. The dispute was brought before the Fair Work Commission by the Australian Manufacturing Workers' Union, which contested the agreement on several grounds, including the adequacy of the provisions concerning redundancy, shift penalties, and pay rates. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, it had to assess if the agreement was in the public interest and if it provided for the terms and conditions of employment in a manner that was fair and reasonable.

The central legal issue before the Commission was whether the agreement contained terms that were procedurally and substantively fair. The Commission examined the agreement's provisions against the criteria set out in the Fair Work Act. This involved assessing whether the agreement provided for fair and reasonable terms and conditions, including pay rates, shift penalties, and redundancy provisions. The Commission also considered whether the agreement was procedurally sound, including whether proper consultation had occurred and whether the agreement was genuinely negotiated. Furthermore, the Commission had to decide if the agreement met the public interest test, which required it to consider the broader economic and social implications of the agreement.

In its decision, the Commission found that the agreement did not meet the necessary criteria for approval. The Commission identified several substantive deficiencies in the agreement, particularly concerning the provisions for redundancy and shift penalties. It concluded that the redundancy provisions were inadequate, as they did not provide sufficient protections for employees facing redundancy. Additionally, the shift penalties were deemed to be unreasonably low, which the Commission found to be unfair to employees working non-standard hours. The Commission also noted procedural shortcomings in the negotiation process, finding that the agreement had not been genuinely negotiated as required by law. Based on these findings, the Commission determined that the agreement did not meet the public interest test and was not in the best interests of the employees.

The Fair Work Commission ultimately rejected the application for approval of the JBS Australia Pty Limited - Townsville Enterprise Agreement 2019. The Commission's decision was based on its findings that the agreement did not provide fair and reasonable terms and conditions, particularly in relation to redundancy and shift penalties. The Commission also found procedural flaws in the negotiation process. Consequently, the agreement was not approved, and it did not come into effect. The Commission's decision emphasised the importance of fair and reasonable terms in enterprise agreements and the necessity of genuine negotiation processes.

JBS Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established