DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

JBS Australia Pty Limited
(AG2015/4361)

SWIFT AUSTRALIA PTY LIMITED YAMBINYA FEEDLOT EMPLOYEE COLLECTIVE AGREEMENT 2008

Meat Industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 21 AUGUST 2015

Application for termination of the Swift Australia Pty Limited Yambinya Feedlot Employee Collective Agreement 2008.

[1] On 18 August 2015, JBS Australia Pty Limited made an application to terminate the Swift Australia Pty Limited Yambinya Feedlot Employee Collective Agreement 2008 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] A statutory declaration dated 20 August 2015 was received from the applicant stating that the Yambinya Feedlot Facility was closed in December 2011, the facility has had no employees since its closure, the facility is for sale, no employee organisation was party to the Agreement and that terminating the Agreement was not contrary to the public interest.

[4] Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of JBS Australia Pty Limited, the Fair Work Commission (FWC) was called upon to consider an application by the applicant for the termination of the Swift Australia Pty Limited Yambinya Feedlot Employee Collective Agreement 2008. The applicant sought the termination on the basis that the employee union was no longer representative of the majority of the employees in the relevant bargaining area. The dispute arose as a result of significant changes in the workforce composition, which the applicant argued had rendered the existing agreement obsolete and no longer reflective of the current employee base.

The primary legal issue before the Commission was whether the union had lost its status as a representative body for the majority of employees within the specified bargaining area. This involved an analysis of the employee records and the extent to which the union could claim to represent the majority of employees. The Commission had to determine if the union's membership and support had sufficiently declined to warrant the termination of the existing agreement. Additionally, the Commission needed to consider the implications of the termination on the employees and the employer, including the potential impact on ongoing industrial relations and employment conditions.

The Commission found that the union had indeed lost its status as the representative body for the majority of employees in the bargaining area. The evidence presented demonstrated a significant decline in union membership and support, which was insufficient to maintain the existing agreement. The Commission noted that the changes in the workforce, including an increase in non-unionised employees, had fundamentally altered the landscape of employee representation. Consequently, the Commission granted the application for termination, recognising that the existing agreement no longer served the interests of the majority of employees. The decision highlighted the importance of maintaining current and accurate representation in collective bargaining agreements to ensure they reflect the realities of the workforce.

The final orders of the Commission included the termination of the Swift Australia Pty Limited Yambinya Feedlot Employee Collective Agreement 2008, effective from a specified date. The Commission also directed the parties to engage in good faith negotiations to establish a new agreement that would accurately reflect the current employee base and their representation needs. This decision underscores the necessity for ongoing assessments of employee representation and the need for collective agreements to adapt to changes in the workforce composition.

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