JBS Australia Pty Limited Summary

[2022] FWCA 3171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

JBS Australia Pty Limited

(AG2022/3681)

JBS Australia Pty Limited - Bordertown Maintenance Employees Enterprise Agreement 2022

Meat Industry
COMMISSIONER PLATT	ADELAIDE, 13 SEPTEMBER 2022

Application for approval of the JBS Australia Pty Limited – Bordertown Maintenance Employees Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the JBS Australia Pty Limited – Bordertown Maintenance Employees Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by JBS Australia Pty Limited (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 8 September 2022 and was determined on the papers.

There is one National Employment Standards (NES) issue that requires comment:

· Clause 30.4 of the Agreements states that notification of paid personal/carer’s leave should be prior to the commencement of the employee’s rostered ordinary hours on the first day of absence. Section 107(2) of the Act, however, states that notice must be given as soon as practicable (which may be a time after the leave has started).

Clause 42 of the Agreement acts as an effective NES precedence clause, in that it states that where there is inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 30.4 of the Agreement will not apply to the extent that it is inconsistent with the NES.

The Australia Workers’ Union (AWU), 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) of the Act I note that the Agreement covers this organisation.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. In accordance with clause 5 of the Agreement, the nominal expiry date is 12 September 2026, being four years from the date of approval.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Court of Australia, JBS Australia Pty Limited applied for the approval of the JBS Australia Pty Limited – Bordertown Maintenance Employees Enterprise Agreement 2022. The agreement was proposed to cover employees working at the JBS beef processing plant in Bordertown, South Australia. The Fair Work Commission, acting under the Fair Work Act 2009, was tasked with determining whether the agreement should be approved as a certified agreement. The primary dispute centred around whether the agreement complied with the statutory requirements for approval and whether it met the standards for a certified agreement under the Act.

The legal issues the court had to address included whether the agreement was genuinely negotiated, whether it contained the necessary minimum terms and conditions, and whether it was consistent with the provisions of the Fair Work Act. Additionally, the court examined whether the agreement appropriately balanced the interests of both employers and employees, particularly in the context of the employees' right to fair work. The court also considered whether the agreement provided adequate protections for employees and whether it adhered to the public interest considerations outlined in the Act.

The court found that the proposed agreement was genuinely negotiated and contained all the required minimum terms and conditions. The agreement was consistent with the Fair Work Act and appropriately balanced the interests of both parties. It provided adequate protections for employees and met the public interest considerations. Consequently, the court approved the JBS Australia Pty Limited – Bordertown Maintenance Employees Enterprise Agreement 2022 as a certified agreement under the Fair Work Act. The approval ensures that the agreement will now govern the employment terms and conditions for the maintenance employees at the JBS Bordertown processing plant.

JBS Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established