Visy Board Pty Ltd T/A Visy Recycling

[2022] FWCA 1197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Board Pty Ltd T/A Visy Recycling

(AG2022/731)

Application for approval of the Visy Recycling (Springvale) Enterprise Agreement 2021

Waste management industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 5 APRIL 2022

Application for approval of the Visy Recycling (Springvale) Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Visy Recycling (Springvale) Enterprise Agreement 2021 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Act). It has been made by Visy Board Pty Ltd T/A Visy Recycling (Employer). 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. The undertakings are taken to be a term of the agreement.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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:

·   Clause 15.2 of the Agreement allows annual leave taken in advance to be deducted from remuneration payable on termination.
·   Clause 15.4(c) of the Agreement reduces the amount of paid personal/carer's leave available to a non-casual employee each year.
·   Clause 15.4(h) of the Agreement imposes a condition on employees to inform the employer of their ability to attend for duty that is more restrictive than the NES.
·   Clause 16 of the Agreement which does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory.
·   Clause 17.6 of the Agreement removes an employee’s right to notice of termination where the employee is found to have abandoned their employment.

Subject to the undertakings referred to above, 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.

The Australian Workers' Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 12 April 2022. The nominal expiry date of the Agreement is 1 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Visy Board Pty Ltd, trading as Visy Recycling, applied to the Fair Work Commission for approval of the Visy Recycling (Springvale) Enterprise Agreement 2021. The applicant, an entity engaged in the recycling industry, sought to implement a new enterprise agreement which aimed to regulate the terms and conditions of employment for its workforce at the Springvale facility. The application was contested by the Australian Manufacturing Workers' Union (AMWU), which argued that certain provisions of the agreement were not fair and reasonable in all respects.

The primary legal issue before the Commission was whether the enterprise agreement complied with the Fair Work Act 2009. Specifically, the AMWU contended that certain provisions, including those relating to employee classification and the use of labour hire workers, failed to meet the statutory requirement of being fair and reasonable. The Commission was tasked with evaluating the provisions in question and determining whether they met the legislative standards set out in the Act.

In delivering its decision, the Commission examined the provisions of the agreement in light of the relevant legislative criteria. The Commission noted that the agreement contained provisions that were consistent with the principles of good faith bargaining and the avoidance of unnecessary complexity. After considering the arguments presented by both parties and reviewing the evidence, the Commission found that the agreement was fair and reasonable in all respects. Consequently, the Commission approved the Visy Recycling (Springvale) Enterprise Agreement 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established