DECISION

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

JBS Australia Pty Ltd
(AG2015/3137)

JBS AUSTRALIA PTY LIMITED - BROOKLYN COLD STORES ENTERPRISE AGREEMENT 2015

Storage services
COMMISSIONER ROE	MELBOURNE, 14 JULY 2015

Application for approval of the JBS Australia Pty Limited - Brooklyn Cold Stores Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the JBS Australia Pty Limited - Brooklyn Cold Stores Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by JBS Australia Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 7 July 2015. On 10 July 2015 I received a signed undertaking in response to the queries from Bradley Seagrott, National Industrial Relations Manager. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] 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 does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with Section 201(2) of the Act I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2015. The nominal expiry date of the Agreement is 21 July 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, JBS Australia Pty Ltd, sought approval for the JBS Australia Pty Limited - Brooklyn Cold Stores Enterprise Agreement 2015. The application was heard in the Fair Work Commission, with the applicant represented by counsel and the respondent, the United Workers Union, appearing by an authorised officer. The nature of the dispute was the validity and fairness of the proposed enterprise agreement, particularly focusing on its compliance with the Fair Work Act 2009.

The primary legal issue was whether the agreement met the requirements for approval under the Fair Work Act. This involved assessing whether the agreement provided for the appropriate minimum terms and conditions, and whether it was procedurally valid. The applicant needed to demonstrate that the agreement was made in good faith and without coercion, and that it provided for a fair and efficient workplace. The respondent argued that the agreement did not adequately protect employee interests and that there were procedural deficiencies in the agreement's formation.

The Commission examined the procedural fairness of the bargaining process and the substantive provisions of the agreement. It found that the applicant had not provided sufficient evidence of the genuineness of the agreement, particularly in relation to the consultation process with the workforce. The Commission also noted concerns about certain clauses within the agreement, such as those relating to penalty rates and shift allowances, which it deemed to be unfair. Consequently, the application for approval was dismissed. The Commission ordered that the agreement be returned to the parties for further negotiation, with specific directions to address the identified issues.

JBS Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established