Seven Point Pork Pty Ltd T/A Seven Point Australian Pork

[2020] FWCA 5427

[2020] FWCA 5427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Seven Point Pork Pty Ltd T/A Seven Point Australian Pork
(AG2020/2732)

JBS SEVEN POINT PORK PRODUCTION ENTERPRISE AGREEMENT 2020

Meat Industry
COMMISSIONER PLATT	ADELAIDE, 13 OCTOBER 2020

Application for approval of the JBS Seven Point Pork Production Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the JBS Seven Point Pork Production Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Seven Point Pork Pty Ltd T/A Seven Point Australian Pork (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 24 September 2020.

[3] On 29 September 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement. Mr Andrew Stanko, an interested employee who was not a bargaining representative, also attended the conference and raised concerns including about employees being coerced to vote yes.

[4] The Applicant was invited to address the matters raised, including through the provision of an undertaking. Mr Stanko was also provided with an opportunity to provide a written submission and any supporting evidence to allow me to inform myself of any issues which may impact on the approval of the Agreement.

[5] The Applicant has submitted an undertaking in the required form dated 9 October 2020. The undertaking deals with the following topics:

•  The Applicant will not apply clause 12.7.4 (casual employment) of the Agreement during the life of the Agreement.

•  In relation to clause 26.2.3 (annual leave) of the Agreement, the 4 week period is waived so that all employees who work on a shift where a shift allowance is usually paid will be paid that allowance when on annual leave.

•  Employees classified as Grade 1 will be paid 150% for the first three hours and 200% thereafter when they work a non-successive shift as defined in the Meat Industry Award 2020.

•  Employees classified as Grade 1 who work overtime will be paid in accordance with the table in the undertaking.

[6] Mr Stanko provided a picture of a noticeboard and a letter dated 30 September 2020 from himself to the Commission. I accept that Mr Stanko had genuine concerns about the process. His letter raised a number of issues predominantly based on third party information that tended to suggest that employees were encouraged/coerced to vote in favour of the Agreement. A participant in a ballot process is entitled to advocate its position – if that advocacy becomes too strong to the point of coercion, then the ballot outcome will be tainted. Encouraging employees to participate in a voting process by providing a minor gift (e.g. ‘sausage sizzle’ - or similar) has become unconventional in many democratic processes. Putting aside for one moment the fact that most of the ‘evidence’ contained in Mr Stranko’s letter is hearsay - in my view the allegations do not support a claim that employees were coerced into supporting the proposed Agreement such that the agreement was not genuine.

[7] A copy of the undertaking has been provided to the bargaining representative and Mr Stanko and I have sought their views in accordance with s.190(4) of the Act. Neither the bargaining representative, nor Mr Stanko expressed any view on the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] The Australasian Meat Industry Employees Union, 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.

[10] 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.

[11] 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. The nominal expiry date is 12 October 2024.

COMMISSIONER

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