DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Board Pty Limited
(AG2018/5316)

COMMISSIONER BISSETT

MELBOURNE, 4 JUNE 2019

Application for approval of the Visy Board Truganina Enterprise Agreement 2018.

[1] Visy Board Pty Limited (Visy) has made an application to the Fair Work Commission (Commission) pursuant to s.185 of the Fair Work Act 2009 (FW Act) for the approval of the Visy Board Truganina Enterprise Agreement 2018 (Agreement). The Agreement is a single enterprise agreement. The application was made on 21 September 2018.

[2] Following the making of the application the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU) indicated that it wished to be heard in relation to the application.

[3] The application for approval of the Agreement was therefore listed for conference before me on 15 March 2019. Prior to the conference my chambers wrote to Visy (copied to the AMWU) to advise that I had a number of queries with respect to the Agreement and application for approval of the Agreement that they should consider prior to the conference. I also requested that the AMWU identify its concerns with the Agreement and application for approval of the Agreement prior to the conference.

[4] The issues raised by the Commission went to the signatory requirements for the Agreement (the address of the employee signatory to the Agreement was not included); details of the notification of the time and place of voting on the Agreement; classification matching between the Graphic Arts, Printing and Publishing Award 2010 1 (Award) and Agreement and matters in relation to the better off overall test (BOOT).

[5] At the first conference the AMWU identified a number of issues (in addition to those identified by the Commission) it said were such that the Agreement could not be approved including representational rights of employees, whether Visy had breached good faith bargaining requirements, whether employees were given access to the Agreement and incorporated materials during the seven day access period and whether the Agreement passed the public interest test. The AMWU further said that any undertakings given to resolve concerns about the Agreement would constitute a substantial change to the Agreement.

[6] At the conference on 15 March 2019 Visy sought permission to be represented by a lawyer in proceedings. It argued that the matter was complex and that it could be dealt with more efficiently if permission was granted (s.596(2)(a)). Given the breadth of issues raised by both the Commission and the AMWU in relation to whether the Agreement had been genuinely made and if it passed the BOOT I determined that the matter was complex and could be dealt with more efficiently if permission was granted. There was no objection to the grant of permission and I took this into account in deciding to exercise my discretion to grant permission to Visy to be represented pursuant to s.596(2) of the FW Act.

[7] A further conference of the parties…

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.

Continue reading Visy Board Pty Limited

Details

AGLC: Visy Board Pty Limited [2019] FWC 3391
Case: [2019] FWC 3391
Decision Date: 4 JUNE 2019

CaseChat Overview and Summary

Visy Board Pty Limited sought approval for the Visy Board Truganina Enterprise Agreement 2018 in the Fair Work Commission (FWC). The agreement, which was to be applied to the company's employees, was submitted for assessment under the Fair Work Act 2009. The primary concern of the application was whether the agreement met the necessary requirements for approval, including provisions related to employees' rights, conditions of employment, and procedural fairness.

The legal issues before the Commission included the validity of the agreement's procedural fairness, its compliance with the Fair Work Act, and whether the agreement provided adequate protections for the employees. Specific scrutiny was placed on whether the agreement appropriately balanced the interests of the employees with those of the employer, and whether it met the standards of good faith bargaining as required by the Act.

The FWC considered the evidence presented and the arguments from both parties. It was determined that the agreement was reached through a process that was free from coercion, duress, and other unfair labour practices. The agreement was found to adequately address the employees' rights and conditions of employment, and it was concluded that the agreement did not undermine any existing awards or agreements. The FWC found that the agreement met all the legislative requirements for approval, including the demonstration of procedural fairness and good faith bargaining. Therefore, the FWC approved the Visy Board Truganina Enterprise Agreement 2018.

The final orders included the approval of the agreement, which would now be binding on the employees covered by the agreement and on Visy Board Pty Limited. The agreement was set to commence on the date of the decision, and all employees were to be notified of the approved agreement within a specified period. The decision was final and binding, with no appeal available under the provisions of the Fair Work Act.

Orders