VIP Steel Packaging Pty Ltd T/A VIP Steel Packaging

[2019] FWCA 6773

[2019] FWCA 6773

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

VIP Steel Packaging Pty Ltd T/A VIP Steel Packaging

(AG2019/2724)

VIP Packaging Drum Reco Plant Agreement 2019

Manufacturing and associated industries
Commissioner Lee	MELBOURNE, 4 OCTOBER 2019

Application for approval of the VIP Packaging Drum Reco Plant Agreement 2019.

1. An application has been made for approval of an enterprise agreement known as the VIP Packaging Drum Reco Plant Agreement 2019 (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 Steel Packaging (the Applicant). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

1. 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.

1. On 25 July 2019, the Applicant provided an undertaking to the Commission advising that the parties agree not to publish the wage rates in the Agreement for reasons pertaining to commercial sensitivity. In the undertaking, the Applicant advised that employees will be paid in accordance with the rates of pay in the detailed in the ‘wage schedule’ filed with the Commission on 23 July 2019.

1. Subsequently, the matter was listed for Hearing 13 September 2019.

1. Clause 22 of the Agreement provides annual percentage increases to the rates of pay. I also note that the Manufacturing and Associated Industries Award 2010 is incorporated. As the Award is incorporated and the 2.5% increase is applied to the test time rates of pay, I do not have a concern with respect to the Better Off Overall Test (BOOT). At the hearing, I advised the parties that I cannot accept an undertaking in relation to the BOOT if I do not have a concern in relation to this.

1. As the rates of pay are not in the Agreement, and I am unable to accept the undertaking filed on 25 July 2019, there is nothing to redact upon publication. However, it was clear that employees were advised prior to voting to approve the Agreement, that they will receive rates of pay consistent with the wage schedule. Therefore, I have a concern with respect to genuine agreement which can be remedied by way of undertaking.

1. The undertaking provided by the Applicant at Annexure A of this decision clearly incorporates by reference the document titled ‘VIP Packaging Drum Reco Agreement 2019 Wage Schedule’ (the Schedule) and is therefore an enforceable term of the Agreement. This satisfies my concerns with respect to genuine agreement. 

1. I advised the parties at the Hearing that the Schedule would be publicly available on the Commission’s file should anyone, such as an employee, request access to it.

1. 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.

1. I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

·           Clause 24 – Redundancy

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2019. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A