JBS Australia Pty Limited

[2023] FWCA 2666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

JBS Australia Pty Limited

(AG2023/1519)

JBS AUSTRALIA PTY LIMITED BORDERTOWN PRODUCTION EMPLOYEES ENTERPRISE AGREEMENT 2023

Meat Industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 AUGUST 2023

Approval of the JBS Australia Pty Limited - Bordertown Production Employees Enterprise Agreement 2023

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as JBS Australia Pty Limited Bordertown Production Employees Enterprise Agreement 2023 (Agreement).

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement does not contain a flexibility term which complies with the Act, specifically with s 203(2)(b). Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australasian Meat Industry Employees Union (AMIEU) being a bargaining representative for the Agreement, has given 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 organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 29 August 2023. The nominal expiry date of the Agreement is 22 August 2027.

DEPUTY PRESIDENT

Appearances:

W Ash for JBS Australia Pty Limited.

B Swan with J Smith and E Hennessy for the Australasian Meat Industry Employees Union.

Hearing details:

Melbourne (by Microsoft Teams)
2023
22 August.

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

JBS Australia Pty Limited sought approval for the JBS Australia Pty Limited Bordertown Production Employees Enterprise Agreement 2023, an enterprise agreement under the Fair Work Act 2009. The application was made pursuant to section 185 of the Act, and the Fair Work Commission was required to determine whether the agreement met the necessary criteria for approval. The agreement in question was intended to cover the employees of JBS Australia Pty Limited in the Bordertown production area, and the Australasian Meat Industry Employees Union, a recognised bargaining representative, had indicated its support for the agreement.

The legal issues before the Deputy President involved verifying that the agreement met the requirements set out in sections 186, 187, 188, and 190 of the Fair Work Act. Additionally, the Deputy President had to confirm whether the agreement contained a flexibility term that complied with section 203(2)(b) of the Act, and if not, whether the model flexibility term prescribed by the Fair Work Regulations 2009 could be considered a term of the agreement. The Deputy President also needed to determine if the agreement would cover the organisation as intended by the bargaining representative.

Upon review, the Deputy President found that the agreement, subject to the employer's written undertaking, satisfied all the requirements for approval. The Deputy President noted that while the agreement did not contain a flexibility term complying with section 203(2)(b) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was incorporated into the agreement. Furthermore, the Deputy President confirmed that the agreement was intended to cover the organisation, as per the notice given by the Australasian Meat Industry Employees Union. As a result, the Deputy President approved the agreement, which will operate from 29 August 2023, with a nominal expiry date of 22 August 2027.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established