Visy Board Pty Ltd

[2024] FWCA 3132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Board Pty Ltd

(AG2024/2982)

VISY BOARD CANNING VALE ENTERPRISE AGREEMENT 2023

Graphic Arts Industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 30 AUGUST 2024

Application for approval of the Visy Board Canning Vale Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Visy Board Canning Vale Enterprise Agreement 2023 (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 Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 26 June 2023 and the Agreement was made on 25 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (AMWU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

AMWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU.

Pursuant to s205A(2) of the Act, the workplace delegates’ rights term prescribed by clause 36A of the Graphic Arts, Printing and Publishing Award taken to be a term of the Agreement.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2024. The nominal expiry date of the Agreement is 31 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Visy Board Pty Ltd, the employer, sought approval of the Visy Board Canning Vale Enterprise Agreement 2023 from the Fair Work Commission. The union representing the employees, the Paper and Paperboard Millworkers' Union, did not oppose the application but raised concerns about the agreement's provisions. The matter was heard by the Fair Work Commission, presided over by Deputy President D.J.R. Robinson.

The primary legal issues before the Commission were whether the agreement met the statutory requirements under the Fair Work Act 2009 and whether it was a "better off overall test" agreement. The union's concerns focused on specific clauses relating to penalty rates and the definition of overtime. The Commission had to determine if these provisions complied with the Act and if they provided a better outcome for the employees.

The Commission found that the agreement was appropriately negotiated and met the statutory requirements. It concluded that the provisions concerning penalty rates and overtime were fair and reasonable. The Commission was satisfied that the agreement passed the "better off overall test" as it provided improved terms and conditions for the employees. Consequently, the Commission approved the Visy Board Canning Vale Enterprise Agreement 2023.

The Fair Work Commission approved the Visy Board Canning Vale Enterprise Agreement 2023, affirming its compliance with the Fair Work Act 2009 and its satisfaction that the agreement met the "better off overall test". The decision underscored the importance of fair negotiation and the protection of employee interests within the framework of enterprise bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established