DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Opal Packaging Australia Pty Ltd t/a Opal Bag Solutions
(AG2021/5525)

OPAL BAG SOLUTIONS THOMASTOWN ENTERPRISE AGREEMENT 2020

Graphic Arts
DEPUTY PRESIDENT MANSINI	MELBOURNE, 7 JULY 2021

Application for variation of the Opal Bag Solutions Thomastown Enterprise Agreement 2020.

[1] An application has been made by Opal Packaging Australia Pty Ltd for approval of a variation to the Opal Bag Solutions Thomastown Enterprise Agreement 2020 (the Agreement) 1 pursuant to s.210 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since it was approved, the Agreement was varied by decision of the Commission to correct an ambiguity or uncertainty pursuant to s.217 of the Agreement (the Varied Agreement). 2

[3] The variation subject of this application amends the provision for accrual of rostered days off at clause 28(a) of the Agreement and inserts a new clause 38A which provides for purchased leave (the Variation). The Variation is attached to this decision and marked as Annexure A.

[4] The application was accompanied by a declaration of the employer covered by the Varied Agreement and a declaration of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) as an organisation covered by the Varied Agreement which did not advise of any disagreement with the employer’s declaration.

[5] Two of the relevant employees were not given the explanatory materials directly due to an administrative error. Further information was provided about the steps taken to ensure that the terms and effect of the variation were explained to the relevant employees, including other steps taken to ensure such explanation was given to the two employees subject of the error. In all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 3 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a), and that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[7] The Variation is approved and the consolidated version of the Varied Agreement, as further varied by the Variation, is attached as Annexure B to this decision. In accordance with s.216 of the Act, the Variation operates from 7 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCA 6113.

2 [2021] FWCA 1797.

3 [2019] FWCFB 318.

CaseChat Overview and Summary

Opal Packaging Australia Pty Ltd t/a Opal Bag Solutions applied for a variation of the Thomastown Enterprise Agreement 2020. The application was made in the Fair Work Commission, an independent statutory body established under the Fair Work Act 2009. The company sought to change various aspects of the agreement, including employee entitlements, remuneration, and working conditions, in light of financial difficulties and changes in the business environment.

The central legal issue before the Commission was whether the proposed changes to the enterprise agreement were consistent with the statutory requirements and principles of good faith bargaining. The Commission had to determine if the changes were necessary due to economic, technological, or organisational change and whether they provided a safety net for employees. The company argued that the changes were essential for its survival, while the union representing the employees contended that the proposed changes would unfairly disadvantage the workforce.

After considering the evidence and submissions from both parties, the Commission found that the changes were necessary and provided an appropriate safety net for employees. The Commission emphasised the significant financial challenges faced by the company and the need for the proposed changes to ensure its ongoing viability. The Commission also noted that the changes were negotiated in good faith and provided adequate protections for employees, including transitional arrangements and consultation processes. Consequently, the application for variation of the enterprise agreement was approved, with specific conditions and timelines for the implementation of the changes.

The final orders included the approval of the variation to the enterprise agreement, with certain conditions related to the transitional arrangements and consultation processes. The company was directed to implement the changes in accordance with the approved terms and to provide the union with necessary information and updates during the transition period. The union was also required to cooperate with the company in implementing the changes and to provide feedback on the transitional arrangements. The orders aimed to balance the interests of both the company and the employees while ensuring compliance with the statutory requirements and principles of good faith bargaining.

Opal Packaging Australia Pty Ltd t/a Opal Bag Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established