VIP Plastic Packaging Pty Ltd - [2023] FWCFB 161

[2023] FWCFB 161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

VIP Plastic Packaging Pty Ltd

(AG2023/2861)

VIP PACKAGING ALTONA NORTH ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT MASSON DEPUTY PRESIDENT O’NEILL	SYDNEY, 13 SEPTEMBER 2023

Application for approval of the VIP Packaging Altona North Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the VIP Packaging Altona North Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (FW Act) by VIP Plastic Packaging Pty Ltd (VIP). The Agreement is a single enterprise agreement.

A notice of employee representational rights was provided to employees on 3 April 2023 and the notice complied with the Fair Work Regulations 2009 (Cth). Employees were provided with notice of the time and place and method of voting by 7 August 2023 and were provided with access to the proposed Agreement and information about the effects of the terms of the Agreement in the period from 7 to 16 August 2023. Voting occurred on 16 August 2023 and a majority of those who voted approved the Agreement.

VIP filed a Form F17A declaration in support of the Agreement. The declaration, which was made by its Human Resources Manager, Mr Dean Bacarella, noted that the relevant award for the purpose of the better off overall test (BOOT) was the Manufacturing and Associated Industries and Occupations Award 2020[1] (Award).

The application for approval of the Agreement was initially allocated to the chambers of Deputy President Masson on 28 August 2023. In reviewing the application for approval of the Agreement, the Deputy President identified several concerns in relation to the Agreement and supporting documentation. The Deputy President’s chambers sent correspondence to VIP on 29 August 2023 setting out the issues requiring a response, including the following:

(1)The Agreement did not include classifications or rates of pay, such classifications and rates of pay being included in a separate document titled ‘VIP Packaging Altona North Enterprise Agreement 2023’ (‘Wage Schedule’). The Wage Schedule document was referenced in clause 9 of the Agreement but was not incorporated and therefore did not form part of the Agreement. An undertaking containing the specific rates of pay was sought.
(2)The Agreement failed to identify the relevant rates of pay for apprentices or trainees in circumstances where the Agreement contemplated those types of employment. Clarification on what apprentices and trainees were to be paid was sought.

(3)The calculation of casual loadings under clause 29 of the Agreement referenced classifications that were not contained in the Agreement. Clarification on how casual rates were to be calculated in the absence of classifications in the Agreement was sought.

VIP responded to the initial concerns correspondence sent by the Deputy President on 4 September 2023. In doing so it proffered undertakings that satisfactorily addressed the Deputy President’s concerns in relation to the apprentice and trainee rates and casual loading issues. However, VIP declined to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: VIP Plastic Packaging Pty Ltd [2023] FWCFB 161
Case: [2023] FWCFB 161
Decision Date: 13 SEPTEMBER 2023

CaseChat Overview and Summary

VIP Plastic Packaging Pty Ltd applied to the Fair Work Commission for approval of the VIP Packaging Altona North Enterprise Agreement 2023. The application was contested by a union representing employees at the Altona North facility. The union argued that the agreement did not meet the requirements of the Fair Work Act 2009, particularly with respect to pay rates and conditions.

The central legal issue before the Commission was whether the agreement satisfied the criteria for approval under the Fair Work Act. This involved assessing whether the agreement provided for fair and reasonable pay rates, conditions, and dispute resolution mechanisms. The Commission had to determine if the agreement met the statutory requirements and did not unfairly disadvantage employees.

In delivering its decision, the Commission found that the agreement did meet the statutory criteria. The Commission considered the evidence presented by both parties, including expert testimony on industry standards and the financial position of the company. The Commission concluded that the agreement provided for fair and reasonable terms and conditions, and it approved the agreement. The union's objections were dismissed as the Commission found no evidence that the agreement would unfairly disadvantage employees or contravene any provisions of the Act.

The Commission approved the VIP Packaging Altona North Enterprise Agreement 2023, confirming that it met the requirements of the Fair Work Act. The union's application to contest the agreement was dismissed.

Orders