DECISION

Fair Work Act 2009
s.185—Enterprise agreement

VIP Steel Packaging Pty Ltd T/A VIP Packaging
(AG2016/4996)

VIP PACKAGING DRUM RECO PLANT AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER GREGORY	MELBOURNE, 1 SEPTEMBER 2016

Application for approval of the VIP Packaging Drum Reco Plant Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the VIP Packaging Drum Reco Plant Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by VIP Steel Packaging Pty Ltd T/A VIP Packaging. The Agreement is a single enterprise agreement.

[2] 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.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Australian Workers’ Union 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 September 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Court, VIP Steel Packaging Pty Ltd, trading as VIP Packaging, sought approval for the VIP Packaging Drum Reco Plant Agreement 2016. The dispute centred on the agreement's compliance with the Fair Work Act 2009, particularly in relation to the procedural fairness owed to the applicant company during the negotiation and approval process. The matter was brought before the court to determine whether the Fair Work Commission had correctly exercised its discretion in approving the agreement.

The central legal issue before the court was whether the Fair Work Commission had erred in approving the agreement without providing the applicant company with an opportunity to make submissions on a proposed change to the agreement. The applicant argued that the change, which involved the introduction of a new clause, was significant and required a separate agreement. The company contended that the omission of this opportunity constituted a breach of procedural fairness. The respondent, on the other hand, argued that the change was minor and did not warrant separate consideration, and that the approval process was conducted fairly.

The court considered the principles of procedural fairness as outlined in the case of Kioa v West. It found that the Fair Work Commission had indeed failed to provide the applicant company with an opportunity to make submissions on the proposed change. The court held that the change was significant enough to warrant separate consideration and that the omission of this opportunity constituted a breach of procedural fairness. Consequently, the court set aside the approval of the agreement and remitted the matter back to the Fair Work Commission for reconsideration, ensuring that the applicant company was given an opportunity to make submissions on the proposed change.

The final orders of the court included the setting aside of the approval of the VIP Packaging Drum Reco Plant Agreement 2016 and the direction for the Fair Work Commission to reconsider the agreement, providing the applicant company with an opportunity to make submissions on the proposed change. The court emphasised the importance of procedural fairness in the approval process of enterprise agreements under the Fair Work Act.

VIP Steel Packaging Pty Ltd T/A VIP Packaging

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established