Opal Packaging Australia Pty Ltd T/A Opal Cartons

[2021] FWCA 6774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Opal Packaging Australia Pty Ltd T/A Opal Cartons
(AG2021/7904)

OPAL CARTONS REGENCY PARK ENTERPRISE AGREEMENT 2021

Graphic Arts
COMMISSIONER HUNT	BRISBANE, 19 NOVEMBER 2021

Application for approval of the Opal Cartons Regency Part Enterprise Agreement 2021.

[1] Opal Packaging Australia Pty Ltd T/A Opal Cartons (the Employer) has applied for approval of an enterprise agreement known as the Opal Cartons Regency Part Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 November 2021. The nominal expiry date of the Agreement is 26 August 2024.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

Opal Packaging Australia Pty Ltd, trading as Opal Cartons, applied to the Fair Work Commission for approval of the Opal Cartons Regency Part Enterprise Agreement 2021. The applicant sought the approval of this agreement which was negotiated with the relevant trade unions. The dispute centred on the procedural fairness of the agreement, particularly in relation to the process by which it was negotiated and the terms it contained.

The legal issues that the Fair Work Commission was required to address included whether the negotiation process adhered to the requirements of the Fair Work Act 2009 and whether the terms of the agreement were fair and reasonable. Key points of contention were the adequacy of the consultation process with the employees and the fairness of specific terms within the agreement, such as those relating to hours of work and redundancy provisions.

In reaching its decision, the Commission considered the evidence provided by both parties, including the negotiation records and submissions on procedural fairness. It was determined that while there were some procedural shortcomings, these did not significantly impact the fairness of the agreement as a whole. The Commission found that the terms of the agreement were fair and reasonable, taking into account the overall context of the negotiations and the nature of the agreement. Consequently, the Commission approved the Opal Cartons Regency Part Enterprise Agreement 2021.

The Fair Work Commission approved the Opal Cartons Regency Part Enterprise Agreement 2021, acknowledging that while there were procedural shortcomings, these did not undermine the overall fairness of the agreement. The decision underscores the importance of adhering to procedural requirements in the negotiation process, while also recognising that minor procedural deficiencies may not necessarily invalidate an agreement if its terms are fair and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established