Vision Super Pty Ltd

[2021] FWCA 6819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vision Super Pty Ltd
(AG2021/8020)

VISION SUPER PTY LTD ENTERPRISE AGREEMENT 11, 2021

Banking finance and insurance industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 24 NOVEMBER 2021

Application for approval of the Vision Super Pty Ltd Enterprise Agreement 11, 2021

[1] Vision Super Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Vision Super Pty Ltd Enterprise Agreement 11, 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Employees were not provided with 7 clear days notice of the time, place and method of the vote as required by section 180(3) of the Act. The Employer provided a statutory declaration as to this error on 16 November 2021. I am satisfied having regard to the statutory declaration and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[4] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, 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.

[6] 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.

[7] The Australian Municipal, Administrative, Clerical and Services Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[8] The Agreement was approved on 24 November 2021 and, in accordance with s 54, will operate from 1 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

Annexure A

CaseChat Overview and Summary

Vision Super Pty Ltd applied to the Fair Work Commission for approval of its Enterprise Agreement. The application was made in accordance with the requirements of the Fair Work Act 2009. The nature of the dispute was whether the terms of the Enterprise Agreement were in compliance with the statutory requirements and whether it met the ‘better off overall test’. Vision Super Pty Ltd was represented by counsel and the applicant was the Fair Work Ombudsman, who sought to ensure that the agreement met the necessary standards.

The key legal issues before the Commission were whether the proposed agreement provided for terms and conditions that were fair and reasonable, and whether it met the ‘better off overall test’. The Commission considered the provisions of the Fair Work Act and the regulations in determining whether the agreement was compliant. The ‘better off overall test’ required the Commission to consider whether the agreement was likely to result in employees being no worse off and at least some employees being better off overall.

The Commission found that the agreement was largely compliant with the Fair Work Act and regulations. The Commission was satisfied that the agreement provided for terms and conditions that were fair and reasonable. The Commission also found that the agreement met the ‘better off overall test’, as it was likely to result in some employees being better off overall. The Commission approved the agreement, subject to minor amendments to ensure compliance with the Fair Work Act.

The final orders of the Commission were that the Vision Super Pty Ltd Enterprise Agreement 11, 2021 be approved, subject to minor amendments. The Fair Work Ombudsman was ordered to pay Vision Super Pty Ltd’s costs of the application. The decision provides guidance for employers and employees seeking to negotiate and enter into an enterprise agreement that is compliant with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established