Visy Board Pty Ltd Summary

[2018] FWCA 7103

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Visy Board Pty Ltd

(AG2018/3379)

Visy Board Yatala Agreement 2018

Manufacturing and associated industries
Deputy President Colman	MELBOURNE, 21 NOVEMBER 2018

Application for approval of the Visy Board Yatala Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Visy Board Yatala Agreement 2018 (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 Ltd. The agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 21 November 2018 and, in accordance with s.54, will operate from 28 November 2018. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Visy Board Pty Ltd applied for approval of the Visy Board Yatala Agreement 2018. The applicant sought the approval of an enterprise agreement to replace the current Registered Australian Building and Construction Industry Agreement 2017. The proposed agreement was intended to address specific operational needs and improve productivity at the Yatala facility. The dispute arose from concerns regarding the fairness and appropriateness of the terms proposed by the applicant.

The legal issues before the court centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Key points of contention included the process by which the agreement was negotiated, whether the agreement was made free of any improper conduct, and whether it complied with the "better off overall test". The fairness of specific terms, particularly those affecting employee entitlements and working conditions, was also scrutinised.

The Commission found that the negotiation process was generally fair and transparent, with adequate representation and opportunity for employees to engage with the proposal. The court acknowledged that while some employees expressed concerns about certain terms, the overall benefits of the agreement, including wage increases and improved work practices, met the better off overall test. The Commission concluded that the agreement was fair and appropriate, taking into account the operational context of the Yatala facility. The application was therefore approved.

The Commission made an order approving the Visy Board Yatala Agreement 2018, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and binding on all parties, including the applicant and the employees covered by the agreement.

Visy Board Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established