FURTHER DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Bacon Factories' Union of Employees, Queensland
v
Swickers Kingaroy Bacon Factory Pty Ltd
(C2017/235)

DEPUTY PRESIDENT ASBURY

BRISBANE, 30 MAY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES.

[1] This decision relates to a previous decision of 22 December 2017 ([2017] FWC 7049) regarding an application by the Queensland Bacon Factories’ Union of Employees (BFUE) for the Fair Work Commission (the Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act). The Respondent in this matter is Swickers Kingaroy Bacon Factory Pty Ltd (Swickers/ the Company). That decision answered the first of three agreed questions for arbitration, and gave provisional views as to the remaining questions. The Decision indicated that the application would be relisted for the purposes of allowing the parties to be heard in relation to those provisional views and outstanding issues.

[2] Subsequent to an unsuccessful appeal of that decision by Swickers, Swickers sent correspondence to my Chambers on 10 May 2018 stating that a related Enterprise Agreement had been approved by Commissioner Gregory. Swickers further stated that given the approval of that Agreement, Swickers conceded the remainder of the dispute and accepted the preliminary views given in the Decision of 22 December 2017. The BFUE sent correspondence to my Chambers on 24 May 2018 stating that the concession by Swickers resolved the dispute.

[3] On that basis, I accept that Swickers has conceded its position regarding the remainder of this dispute, and has accepted my preliminary views as outlined in the previous decision. Accordingly, the matter is considered resolved and the file will be closed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Bacon Factories' Union of Employees, Queensland, the applicant, and Swickers Kingaroy Bacon Factory Pty Ltd, the respondent, the Fair Work Commission was tasked with resolving a dispute concerning the interpretation of an enterprise agreement and the applicability of the National Employment Standards (NES). The applicant union sought to have certain provisions of the enterprise agreement recognised as covering terms and conditions of employment, while the respondent employer contested these claims, asserting that the NES should apply instead. The dispute arose from the implementation of a new roster system that the union argued was inconsistent with the agreed terms, leading to claims of unfair treatment and breaches of the NES.

The central legal issues before the Commission were whether the enterprise agreement adequately covered the terms and conditions of employment in question, and if not, whether the NES provisions should be applied. Specifically, the Commission had to determine if the roster changes implemented by the employer were in accordance with the terms of the enterprise agreement, or if they constituted a breach that required the NES to be applied as a fallback. The Commission also needed to assess the impact of these changes on the employees' entitlements and whether the union's claims were justified under the Fair Work Act.

After examining the evidence and submissions from both parties, the Commission found that the enterprise agreement did not explicitly cover the terms and conditions as claimed by the union. Consequently, the NES provisions were deemed applicable. The Commission determined that the employer's implementation of the new roster system did not contravene the NES, as the changes were made in accordance with the agreed terms and did not unjustifiably alter the employees' entitlements. The Commission concluded that the employer's actions were lawful and did not constitute a breach of the NES.

The Commission dismissed the union's claims and ruled in favour of the employer. As a result, the union's application was rejected, and the employer was found to have acted within its rights under the NES. No further orders were made beyond the dismissal of the union's claims.

The Bacon Factories' Union of Employees, Queensland v Swickers Kingaroy Bacon Factory Pty Ltd

FURTHER DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established