Opal Packaging Australia Pty Ltd T/A Opal Bag Solutions

[2022] FWCA 2173

The attached document replaces the document previously issued with the above code on 25 July 2022.

Publication ID inserted.

Associate to Commissioner Ryan

Dated 26 July 2022

[2022] FWCA 2173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Opal Packaging Australia Pty Ltd T/A Opal Bag Solutions

(AG2022/1932)

Graphic Arts
COMMISSIONER P RYAN	SYDNEY, 29 JUNE 2022

Application for approval of the Opal Bag Solutions Revesby Enterprise Agreement 2022

Opal Packaging Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Opal Bag Solutions Revesby Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Sections 186, 187 and 188

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

National Employment Standards (NES)

I observe that clauses dealing with compassionate leave, parental leave, public holidays, notice of termination and redundancy may be inconsistent with the NES. However, noting clause 5(d) of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representatives

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 the AMWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2022. The nominal expiry date of the Agreement is 6 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Opal Packaging Australia Pty Ltd, trading as Opal Bag Solutions, sought approval for a single-enterprise agreement from the Fair Work Commission (FWC) under the Fair Work Act 2009. The proposed agreement, known as the Opal Bag Solutions Revesby Enterprise Agreement 2022, was to cover employees at the Revesby site of the company. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), also known as the Australian Manufacturing Workers' Union, was recognised as a bargaining representative for the agreement. The primary legal issue before the FWC was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The FWC confirmed that the application met the criteria set out in sections 186, 187, and 188 of the Act, which relate to the approval process for single-enterprise agreements. The FWC also acknowledged that certain provisions of the agreement, including those dealing with compassionate leave, parental leave, public holidays, notice of termination, and redundancy, appeared to be inconsistent with the National Employment Standards (NES). However, the FWC noted that the agreement contained a NES precedence clause (clause 5(d)) which ensured that the more beneficial entitlements of the NES would prevail where there was an inconsistency between the agreement and the NES. The FWC was satisfied that the agreement appropriately recognised the AMWU as a bargaining representative and that the agreement would cover the union.

The FWC approved the agreement, which will operate from 6 July 2022, with a nominal expiry date of 6 July 2025. The approval ensures that the terms and conditions of employment for the employees covered by the agreement are governed by the approved agreement, subject to the precedence of the NES where applicable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established