Swickers Kingaroy Bacon Factory Pty Ltd

[2018] FWCA 2562

[2018] FWCA 2562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Swickers Kingaroy Bacon Factory Pty Ltd
(AG2016/8094)

SWICKERS KINGAROY BACON FACTORY ENTERPRISE AGREEMENT 2016

Meat Industry
COMMISSIONER GREGORY	MELBOURNE, 8 MAY 2018

Application for approval of the Swickers Kingaroy Bacon Factory Enterprise Agreement 2016.

[1] An application has been made under s.185 of the Fair Work Act 2009 (Cth)(“the Act”) by Swickers Kingaroy Bacon Factory Pty Ltd (“Swickers”) for approval of the Swickers Kingaroy Bacon Factory Enterprise Agreement 2016 (“the Agreement”). The Agreement is a single enterprise agreement and is intended to cover around 540 employees employed by Swickers in its production facility at Kingaroy in Queensland.

[2] The Bacon Factory Union of Employees (“the BFUE”) and the Australian Meat Industry Employees’ Union (Queensland Branch) (“the AMIEU”) were both Union Bargaining Representatives, and have both provided F18 Statutory Declarations indicating they each want to be covered by the Agreement, if approved. However, both Unions took issue in their Statutory Declarations with various matters referred to in the F17 Employer’s Statutory Declaration.

[3] Following receipt of the application the Commission subsequently received a series of requests from the Applicant’s representative for the matter to be adjourned. These requests made reference to other pending proceedings before the Commission, 1 and indicated that they were relevant to the present matter in that their outcome would likely inform the Commission about how the “better off overall” test was to be applied in the context of the present application. It was indicated that those proceedings concerned the existing Swickers Kingaroy Bacon and B.F.U.E Collective Workplace Agreement 20122 (“2012 Agreement”)that now covers the parties, and were dealing with similar terms in that Agreement to those contained in the Agreement that is the subject of the present application.

[4] However, the Commission then received correspondence from the AMIEU indicating that it now objected to further adjournments being granted and pointing, in particular, to the financial consequences for the employees to be covered arising from the extended delay in dealing with the application. The Commission responded by convening a conference with the Applicant and the Union Bargaining Representatives to determine how the matter should now be progressed. It was agreed in those discussions on 12 February 2018 that the matter should now be set down for hearing and determination. However, it was also agreed that the Applicant and the Union Bargaining Representatives would hold further discussions in the meantime to explore whether any agreement could be reached in regard to how the matter should now be dealt with.

[5] However, the Commission then received a further request from the Applicant’s representative for the hearing date to be vacated. This was based on the fact that the proceedings in the Commission dealing with the 2012 Agreement were still unresolved. The Commission accordingly decided to vacate the listed hearing dates and instead convened a further mention which was held on 12 April 2018.

[6] The Applicant made reference in those discussions to a recent Full Bench decision 3 which had been handed down on the previous day in regard to the 2012 Agreement. It now proposed that the present application be determined, and indicated that it intended to provide a series of additional undertakings which were designed to enable the application to be approved. These would be consolidated in a single document and provided to both Unions for their consideration. It was also proposed that the BFUE and the AMIEU would have a further period of 7 days to consider what was being proposed and to then provide their response in terms of how the matter should now be progressed.

[7] After various further exchanges the Commission was then advised by both Unions that after further consideration and consultation with their members they supported the terms of the undertakings proposed by the Applicant and now requested that the Commission approve the Agreement.

[8] As indicated, the Applicant has provided written undertakings. A copy of those undertakings is attached. I am satisfied, firstly, that the undertakings will not cause financial detriment to any employee covered by the Agreement, and also do not result in substantial changes to the Agreement.

[9] Subject to the undertakings referred to above I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application have been met.

[10] In addition, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement pursuant to s.202(4) of the Act.

[11] The Australasian Meat Industry Employees’ Union and the Bacon Factories Union of Employees, both being Union Bargaining Representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers those organisations.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 May 2018. The nominal expiry date of the Agreement is 19 December 2020.

COMMISSIONER

ANNEXURE A

 1   See C2017/235 - Bacon Factories' Union of Employees, Queensland, The (158Q) v Swickers Kingaroy Bacon Factory Pty Ltd and C2018/218 - Swickers Kingaroy Bacon Factory Pty Ltd v Bacon Factories' Union of Employees, Queensland, The (158Q).

 2   AE897897.

 3   Swickers Kingaroy Bacon Factory Pty Ltd v The Bacon Factories' Union of Employees, Queensland[2018] FWCFB 1635.

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