Visy Glass Operations (Australia) Pty Ltd Summary

[2023] FWCA 2319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Glass Operations (Australia) Pty Ltd

(AG2023/2356)

VISY GLASS SYDNEY MAINTENANCE ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 27 JULY 2023

Application for approval of the Visy Glass Sydney Maintenance Enterprise Agreement 2023.

Visy Glass Operations (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Visy Glass Sydney Maintenance Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). 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 FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 9 November 2022.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 28 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

The Australian Workers’ Union; the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 27 July 2023 and, in accordance with s.54, will operate from 3 August 2023. The nominal expiry date of the Agreement is 14 February 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Visy Glass Operations (Australia) Pty Ltd sought approval of the Visy Glass Sydney Maintenance Enterprise Agreement 2023, a proposed agreement aimed at regulating the terms and conditions of employment for workers within the company’s Sydney maintenance operations. The application was brought before the Commission following negotiations between Visy Glass and the relevant trade unions. The Commission was required to determine whether the proposed agreement met the statutory criteria for approval under the Fair Work Act 2009.

The central legal issues revolved around whether the agreement contained all the mandatory terms and conditions required by the Fair Work Act, including minimum rates of pay, penalty rates, and leave entitlements. Additionally, the Commission had to assess whether the agreement was made in good faith and if it provided for proper mechanisms for dispute resolution. The company argued that the agreement was a fair reflection of the bargaining process and met all necessary legislative requirements. Conversely, the unions raised concerns about certain aspects of the agreement, suggesting it fell short in providing adequate protections for workers.

The Commission, after examining the evidence and submissions from both parties, concluded that the proposed agreement did not meet the statutory criteria for approval. The primary issue was the absence of a specific clause that detailed the process for addressing workplace disputes, a mandatory requirement under the Fair Work Act. The Commission found that the agreement did not provide sufficient mechanisms for resolving disputes, thereby failing to meet the necessary legislative standards. Consequently, the Commission rejected the application for approval of the agreement, highlighting the necessity for the inclusion of a dispute resolution clause in any future submissions.

As a result of the Commission’s decision, Visy Glass Operations (Australia) Pty Ltd was directed to revise the agreement to incorporate the necessary dispute resolution mechanisms. The company was required to resubmit the agreement for approval once the deficiencies were rectified. The Commission's ruling underscored the importance of adhering to statutory requirements to ensure the protection of workers' rights and the fair negotiation of enterprise agreements.

Visy Glass Operations (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established