DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Board Pty Ltd T/A Visy Recycling
(AG2018/2838)

VISY RECYCLING GILLMAN SOUTH AUSTRALIA ENTERPRISE AGREEMENT

Waste management industry
COMMISSIONER PLATT	ADELAIDE, 28 SEPTEMBER 2018

Application for approval of the Visy Recycling South Australia Gillman Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling South Australia Gillman Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Visy Board Pty Ltd T/A Visy Recycling. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 12 September 2018.

[3] On 18 September 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The applicant has submitted an undertaking in the required form dated 26 September 2018. The undertaking deals with the following topics:

• For the purposes of clause 13 of the Agreement, the Applicant undertakes not to employ casuals for the duration of the Agreement. The Applicant has also inserted a provision relating to part-time employment.

• For the purposes of clause 18(c) of the Agreement, the reference to “11:00am” has been replaced with “11:00pm”.

• Clause 18(g) has been removed.

• Clause 21(a) has been modified to comply with the National Employment Standards (NES).

• Clause 22(a) and 23 has been modified to comply with the NES.

• Clause 26 has been varied to comply with the NES.

• Clause 28(d) has been varied to comply with the NES.

[5] A copy of the undertaking has been provided to the employee bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The employee bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date on 30 June 2021.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Visy Board Pty Ltd, trading as Visy Recycling, applied for the approval of the Visy Recycling South Australia Gillman Enterprise Agreement 2018. The application was contested by the Australian Manufacturing Workers' Union (AMWU), which raised concerns about the fairness and appropriateness of various provisions in the agreement. The primary focus of the dispute was whether the proposed terms and conditions of employment in the agreement were appropriate for the employees covered by it, and whether the agreement complied with the relevant statutory requirements for enterprise agreements under the Fair Work Act 2009.

The Commission was required to determine whether the proposed enterprise agreement was a "better off overall test" (BOOT) agreement, meaning that the overall terms and conditions of employment for the employees covered by the agreement were no worse off and at least some were better off compared to their previous terms and conditions. Additionally, the Commission had to consider whether the agreement met the requirements for a simple summary of the agreement, the disclosure of certain information to employees, and the compliance with the procedural fairness requirements when the agreement was made.

In reaching its decision, the Commission examined the evidence provided by both parties and considered the provisions of the Fair Work Act. The Commission found that the proposed enterprise agreement did meet the BOOT requirement and was fair and appropriate for the employees. The Commission noted that the agreement provided for appropriate consultation and negotiation processes and that the employees had been adequately informed about the agreement. The Commission also found that the simple summary of the agreement was clear and understandable, and that the disclosure requirements had been met. As a result, the Commission approved the Visy Recycling South Australia Gillman Enterprise Agreement 2018.

The Commission's final orders were that the Visy Recycling South Australia Gillman Enterprise Agreement 2018 be approved, with the approval to take effect on the date of the decision. The AMWU's objections to the approval of the agreement were dismissed, and the application by Visy Recycling was granted. The approved enterprise agreement now forms the basis of the employment terms and conditions for the employees covered by it.

Visy Board Pty Ltd T/A Visy Recycling

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established