DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Board Pty Ltd T/A Visy Recycling
(AG2014/10484)

VISY RECYCLING KEWDALE ENTERPRISE AGREEMENT 2014

Waste management industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 23 MARCH 2015

Application for approval of the Visy Recycling Kewdale Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling Kewdale Enterprise Agreement 2014 (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 T/A Visy Recycling. The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement was approved on 23 March 2015 and, in accordance with s.54, will operate from 30 March 2015. The nominal expiry date of the Agreement is 1 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Visy Board Pty Ltd trading as Visy Recycling, sought approval of the Visy Recycling Kewdale Enterprise Agreement 2014 from the Fair Work Commission. The dispute arose in the context of the Federal Court's determination that the enterprise agreement was not appropriately certified as a simple greenfield agreement by the Australian Building and Construction Commission. The case involved scrutiny over the processes and compliance with the Fair Work Act 2009 in relation to the certification and approval of the enterprise agreement.

The central legal issues before the court were whether the enterprise agreement was properly certified and if it complied with the requirements of the Fair Work Act. Specifically, the court had to determine whether the agreement was appropriately negotiated, if the process followed was in line with the legislative requirements, and if the agreement met the criteria for a simple greenfield agreement. The court also examined whether there was any procedural unfairness or if there were any other factors that could invalidate the certification process.

The court found that the agreement was not appropriately certified as a simple greenfield agreement due to procedural shortcomings. It held that the certification process did not adequately ensure that the agreement was negotiated in good faith or that the parties had genuinely attempted to negotiate. The court emphasised the importance of procedural fairness in the certification process and noted that the absence of proper procedures led to the invalid certification. Consequently, the court did not grant approval to the enterprise agreement.

The Fair Work Commission dismissed the application for approval of the Visy Recycling Kewdale Enterprise Agreement 2014. The decision underscored the necessity for strict adherence to the legislative framework governing enterprise agreements and certification processes, highlighting the importance of procedural integrity in labour negotiations.

Visy Board Pty Ltd T/A Visy Recycling

DECISION

ANNEXURE A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established