Opal Packaging Australia Pty Ltd t/a Opal Bag Solutions

[2021] FWCA 3962

[2021] FWCA 3962

FAIR WORK COMMISSION

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

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<AE509525  PR731445>

 1   [2020] FWCA 6113.

 2   [2021] FWCA 1797.

 3   [2019] FWCFB 318.