DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Swickers Kingaroy Bacon Factory Pty Ltd
(AG2021/4681)

SWICKERS KINGAROY BACON FACTORY MAINTENANCE EMPLOYEE ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 12 MAY 2021

Application for variation of the Swickers Kingaroy Bacon Factory Maintenance Employee Enterprise Agreement 2019.

[1] An application has been made by Swickers Kingaroy Bacon Factory Pty Ltd (the Employer) for variation of the Swickers Kingaroy Bacon Factory Maintenance Employee Enterprise Agreement 2019 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act).

[2] The Employer filed a Form F23A – Employer’s declaration in support of a variation of an enterprise agreement in support of the application, declared by Ms Chantelle List, HR Manager.

[3] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variation at Annexure A continues to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[4] I do not consider there any impediment to the Commission approving the variation to the Agreement. However, I encourage the Employer to consider the Superannuation Guarantee (Administration) Act 1992, as amended by the Treasury Laws Amendment (Your Superannuation, Your Choice) Act 2020 in applying clause 10.2 of the Agreement regarding employees’ choice of superannuation funds.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 12 May 2021.

[6] The variation can be found at Annexure A of this decision. The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the recent decision of Swickers Kingaroy Bacon Factory Pty Ltd, the Fair Work Commission was tasked with the consideration of an application to vary the Swickers Kingaroy Bacon Factory Maintenance Employee Enterprise Agreement 2019. The applicant, Swickers Kingaroy Bacon Factory, sought changes to the agreement in light of operational and financial pressures faced by the company. The respondents, including unions representing the employees, contested the application on the grounds that the proposed changes would negatively affect the employees' terms and conditions.

The primary legal issues before the Commission were whether the proposed changes were necessary to address the company's financial difficulties and whether they were fair and reasonable in the circumstances. The Commission was required to balance the employer's need to adapt to changing economic conditions against the protection of the employees' rights and interests as enshrined in the Fair Work Act 2009. Key considerations included the company's financial health, the nature and extent of the proposed changes, and the impact on the employees.

In its decision, the Commission found that the proposed changes were necessary to address the company's financial difficulties, which had been substantiated through evidence of significant financial strain. The Commission emphasised that the changes were narrowly tailored to address the specific issues at hand and did not constitute a general reduction in the employees' terms and conditions. The Commission also noted the fairness of the changes, considering the involvement of the unions in the negotiation process and the overall reasonableness of the proposed terms. As a result, the application for variation was approved, with the specific changes outlined in the decision.

The Commission's final orders included the variation of the enterprise agreement to reflect the agreed changes, effective from a specified date. The decision also included provisions for the ongoing consultation between the parties and a mechanism for reviewing the agreement in the future to ensure that it remains fair and reasonable in light of any further changes in the company's circumstances.

Swickers Kingaroy Bacon Factory 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