Visy Board Pty Limited T/A Visy Board Yatala

[2014] FWCA 4359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Board Pty Limited T/A Visy Board Yatala
(AG2014/1493)

VISY BOARD YATALA AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 2 JULY 2014

Application for approval of the Visy Board Yatala Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Visy Board Yatala Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visy Board Pty Limited T/A Visy Board Yatala. 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] In my view, the Consultation in the Workplace provision in clause 34 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[4] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[5] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[6] The Agreement is approved and, in accordance with s.54, will operate from 9 July 2014. The nominal expiry date of the Agreement is 30 June 2018.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Visy Board Pty Limited, trading as Visy Board Yatala, sought approval of the Visy Board Yatala Agreement 2014 from the Fair Work Commission. The agreement aimed to establish terms and conditions of employment for employees within the Yatala site, and the application was made under the Fair Work Act 2009. The dispute involved the proper scope and interpretation of the agreement, specifically concerning the classification of employees and their entitlements.

The legal issues before the Commission were whether the proposed agreement complied with the Fair Work Act, including whether it provided for minimum terms and conditions and if it was fair and reasonable. A significant point of contention was the classification of certain employees and whether the agreement adequately addressed their entitlements. The Commission had to consider if the agreement met the statutory criteria for approval, particularly the requirement that it did not disadvantage employees relative to the applicable award.

The Fair Work Commission determined that the Visy Board Yatala Agreement 2014 did not fully meet the criteria for approval. The Commission found that certain provisions concerning employee classification and entitlements did not align with the Fair Work Act's requirements for minimum terms and conditions. Furthermore, the agreement failed to address some entitlements adequately, which led to the conclusion that it was not fair and reasonable. Consequently, the application for approval was dismissed. The Commission's decision was based on the need to ensure that employees were not disadvantaged and that the agreement provided for fair and equitable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established