Visy Industries Holdings Pty Ltd
[2023] FWCA 2393
•3 AUGUST 2023
| [2023] FWCA 2393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Visy Industries Holdings Pty Ltd
(AG2023/2381)
VISY LOGISTICS PTY LTD QUEENSLAND METROPOLITAN DRIVERS AND WAREHOUSE ENTERPRISE AGREEMENT 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 3 AUGUST 2023 |
Application for approval of the Visy Logistics Pty Ltd Queensland Metropolitan Drivers and Warehouse Enterprise Agreement 2022
Visy Industries Holdings Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Visy Logistics Pty Ltd Queensland Metropolitan Drivers and Warehouse Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, which 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 Act, as it was 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. The notification time for the Agreement was 15 December 2022.[1]
In the Applicant’s Form F17, it noted that of the 45 employees covered by the Agreement at the time of the vote, 26 were engaged on a casual basis. This gave rise to a concern that the Agreement may not have been approved by a majority of ‘employees employed at the time’, as required by ss 181(1) and 182(1) of the Act. In response to this issue, the Applicant clarified that there were no casual employees covered by the Agreement at the time of the vote and the reference to 26 casual employees was an erroneous reference to the number of labour hire workers engaged by the Applicant, who were not covered by the Agreement.[2] The confusion was said to have arisen out of a conversation between Mr Rob Elliott, State Manager (QLD), and Mr Darryn Reece, Industrial Relations Officer, about the application prior to its lodgement with the Commission.[3] I note that I have allowed an amendment to the Form F17, on application by the Applicant, to reflect that no casual employees were covered by the Agreement at the time of the vote.
The Form F17 further noted that between 12 June 2023 and 30 June 2023, face-to-face briefing sessions were held with employees in which the Applicant verbally confirmed how voting on the Agreement would occur, and the employees confirmed their contact details to ensure they were in receipt of information regarding the vote.[4] On 20 June 2023, the employees were verbally informed of the date and method of the vote,[5] and on 28 June 2023, employees were provided with documentation confirming how to vote.[6] Voting commenced on 30 June 2023.[7]
To the extent that there was non-compliance with s 180(3) of the Act (as it was prior to 6 June 2023), the Applicant submits this was a ‘minor procedural or technical error’ and that the Commission should exercise its discretion to approve the Agreement despite this error.
In Huntsman Chemical Company Australia Pty Ltd, the Full Bench noted that the purpose of s 180(3) of the Act, as it was prior to 6 June 2023, was to ensure that all employees knew when and how to cast a vote on an agreement so that they could have an opportunity to influence the outcome of the vote.[8] In this case, 36 of the 45 employees covered by the Agreement cast a valid vote on the approval of the Agreement.[9] It is apparent from the evidence provided that employees were aware of the details of the vote. If there was non-compliance with s 180(3) (as it was prior to 6 June 2023), it is unlikely that any employees who will be covered by the Agreement suffered disadvantage. As a result, I am satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement pursuant to s 188(2) of the Act (as it was prior to 6 June 2023).
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.
In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.
The Agreement was approved on 3 August 2023 and, in accordance with s 54, will operate from 10 August 2023. The nominal expiry date of the Agreement is 1 July 2026.
DEPUTY PRESIDENT
Annexure A
[1] Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement), question 17 (Form F17).
[2] Witness Statement of Rob Elliott, [15]–[16] (Elliott Statement).
[3] Ibid.
[4] Form F17 (n 1) question 21.
[5] Elliott Statement (n 2) [17].
[6] Form F17 (n 1) question 21.
[7] Ibid question 25.
[8] [2019] FWCFB 318, [74] (Table 2), [170]–[173].
[9] Form F17 (n 1) question 26.
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