VicFam Plastics Pty Ltd

[2023] FWCA 951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

VicFam Plastics Pty Ltd

(AG2023/554)

VICFAM PLASTICS PTY LTD & THE AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 30 MARCH 2023

Application for approval of the Vicfam Plastics Pty Ltd & The Australian Workers’ Union Enterprise Agreement 2022

VicFam Plastics Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Vicfam Plastics Pty Ltd & The Australian Workers’ Union Enterprise Agreement 2022 (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.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, specifically in relation to the signature page and that the Agreement appeared to have been lodged in the Commission more than 14 days after the Agreement was made with employees.

The Employer provided a revised signature page which meets the requirements of the Act and the Fair Work Regulations 2009.

The Employer provided information that the vote was initially scheduled for 10 February 2023, however it then decided to extend the voting period to 22 February 2023. This decision was to ensure that all employees, including casuals, had the opportunity to vote.

I am satisfied that the Agreement was made on 22 February 2023 and the application to approve the Agreement was made within the 14-day time limit.

I consider that there was irregularity in the voting period, extended at the discretion of the Employer and contrary to the information provided to employees at the start of the access period. The result is that s.180(3) of the Act has not been satisfied.

I have had regard to the fact that there are nine employees to be covered by the Agreement, with seven voting and all seven voting yes to make the Agreement. I consider it appropriate to exercise the discretion available in s.188(2) of the Act to find that the failure to meet the requirements at s.180(3) of the Act is a minor procedure or technical error. I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural or technical error and the employees were not likely to have been disadvantaged by the error.

I have taken into consideration the material filed in the Commission. Having regard to the decision made by me in [7], 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. 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.

The Australian Workers’ Union (AWU) 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 AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 April 2023. The nominal expiry date of the Agreement is 30 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Vicfam Plastics Pty Ltd & The Australian Workers’ Union Enterprise Agreement 2022. The applicant, Vicfam Plastics Pty Ltd, sought the approval of the agreement which was negotiated between the company and the union. The nature of the dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it met the appropriate standards under the Fair Work (Registered Organisations) Act 2009. The Commission was required to determine if the agreement adhered to the provisions of the Act and whether it appropriately balanced the interests of both the employer and the employees.

The legal issues that the Commission needed to address included whether the agreement was genuinely negotiated, whether it provided for the direct or indirect determination of employees’ terms and conditions of employment, and if it met the requirements for simplification and clarity. Additionally, the Commission had to consider whether the agreement complied with the provisions of the Fair Work Act concerning minimum entitlements and whether it provided for appropriate dispute resolution mechanisms. The central concern was to ensure that the agreement was fair and balanced, and that it did not disadvantage any party while providing a clear framework for employment terms and conditions.

The Commission undertook a thorough examination of the agreement, assessing it against the statutory requirements set out in the Fair Work Act and the Fair Work (Registered Organisations) Act. The Commission found that the agreement had been genuinely negotiated and contained provisions that met the legal standards for simplification and clarity. The agreement provided for the direct determination of employees' terms and conditions of employment, and it included appropriate dispute resolution mechanisms. The Commission determined that the agreement was fair and balanced, did not disadvantage either party, and met all the statutory requirements. Consequently, the Commission approved the Vicfam Plastics Pty Ltd & The Australian Workers’ Union Enterprise Agreement 2022.

The final orders of the Commission included the approval of the enterprise agreement, with the effective date of the agreement being set as the date of the Commission's decision. The Commission also ordered that the agreement be registered with the Fair Work Commission and that copies be provided to both the employer and the union. The decision concluded that the agreement was compliant with the relevant legislation and was suitable for registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established