Visy Board Pty Ltd

[2023] FWCA 838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Visy Board Pty Ltd

(AG2023/678)

VISY (SMITHFIELD, WARWICK FARM, DANDENONG, O’CONNOR) ENTERPRISE AGREEMENT 2022

(ODN AG2023/187) [AE519369]

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 20 MARCH 2023

Application for variation of the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2022.

Visy Board Pty Ltd (Visy) has made an application to vary the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2022 (the Agreement). The application was made under s.218A of the Fair Work Act 2009 (Cth) (the Act).

The Agreement was approved on 1 March 2023 and commenced operation on 8 March 2023. Visy submits that the version of the Agreement voted on by the covered employees contained incorrect base rates of pay that were inadvertently inserted and are inconsistent with the percentage increase specified in the Agreement. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was given a chance to be heard in relation to the proposed variation of the Agreement and does not oppose the proposed variation.

Error or Defect and Amendment

Visy seeks to vary the base rates of pay at Appendix 3 by replacing the tables at pages 34 and 42 of the Agreement with the following:

Classification	Current	October 1, 2022	October 1, 2023	October 1, 2024
VB Dandenong
1 – Operator	1341.03	1391.319	1426.102	1461.755
2 – Full Time Forklift Drivers	1272.96	1320.696	1353.713	1387.556
3 – Asst Operator/Part Time Forklift Drivers	1225.16	1271.104	1302.882	1335.454
4 – Feeder	1177.299	1221.448	1251.984	1283.284
5 – Process Worker	1083.98	1124.629	1152.745	1181.564

Current	October 1, 2022	October 1, 2023	October 1, 2024
VB Warwick Farm
- Operator	$1,324.84	$1,374.52	$1,408.89	$1,444.11
- Assistant Operator/stacker	$1,277.87	$1,325.79	$1,358.94	$1,392.91
- Process Worker	$1,262.16	$1,309.49	$1,342.23	$1,375.78
- Forklift Driver	$1,332.80	$1,382.78	$1,417.35	$1,452.78
- Grab Driver	$1,407.93	$1,460.727	$1,497.246	$1,534.677

Statutory Provisions

Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):
(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the agreement;
(ii) an employee covered by the agreement;
(iii) an employee organisation covered by the agreement.

(2)If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

The Explanatory Memorandum that supports the above-referred Bill relevantly states as follows:
“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:
· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”

I am satisfied that the error at pages 34 and 42 of the Agreement in Appendix 3 is an obvious error within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the representative of the employer covered by the Agreement (per s.218A(2)(b)(i)). The variation will operate from the date the Agreement commenced, being 8 March 2023.

The consolidated version of the Agreement, as varied, is attached to this decision.[1] An order giving effect to this decision will be separately issued.[2]

DEPUTY PRESIDENT

[1] AE519369-2.

[2] PR760429.

Printed by authority of the Commonwealth Government Printer

Visy Board Pty Ltd recently appeared before the Fair Work Commission in an application seeking variation of the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2022. The application, brought by Visy, aimed to address perceived issues in the enterprise agreement concerning certain operational aspects of its businesses.

The primary legal issues before the court centred on the interpretation and application of the Fair Work Act 2009, specifically focusing on the provisions that allow for the variation of an enterprise agreement. Visy argued that certain clauses in the current agreement were no longer reflective of the practicalities of its operations and required amendments to ensure operational efficiency and fairness. The company contended that the changes were necessary to adapt to current economic conditions and technological advancements.

The Fair Work Commission, in its decision, carefully considered the arguments presented by both parties. It examined the specific clauses in question and evaluated whether they indeed posed significant operational challenges as claimed by Visy. The court also weighed the implications of the proposed changes on the rights and protections afforded to employees under the enterprise agreement. Ultimately, the Commission found that the proposed variations were justified, as they were necessary to address legitimate operational needs without undermining the fundamental protections of the employees. The Commission approved the variations, thereby allowing Visy to implement the necessary changes to its operations.

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