Visy Logistics Pty Ltd

[2025] FWCA 73

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Logistics Pty Ltd

(AG2024/4883)

VISY YATALA GLASS TRANSPORT AND WAREHOUSE AGREEMENT 2024

Road transport industry
COMMISSIONER SLOAN	SYDNEY, 9 JANUARY 2025

Application for approval of the Visy Yatala Glass Transport and Warehouse Agreement 2024

Visy Logistics Pty Ltd has made an application for approval of an enterprise agreement known as the Visy Yatala Glass Transport and Warehouse Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The Transport Workers’ Union of Australia, NSW/QLD (Interim Governance) Branch (“TWU”) was a bargaining representative for the Agreement. It contended that Visy had failed to identify two terms of the Agreement which were in the TWU’s view less favourable than the Road Transport and Distribution Award 2020. The first was that the Agreement is silent on whether superannuation is paid on absences from work, which is required by clause 20.5 of the Award. The second was that the Agreement does not require Visy to notify an employee and their representatives of a decision to introduce a major change, where the Award does contain such a requirement. However, the TWU supported approval of the Agreement.
Clause 12 of the Agreement provides that the Agreement “shall be read and interpreted in conjunction with” the Award but prevail over the Award to the extent of any inconsistency. On its terms, it is difficult to understand what effect this clause could have. By operation of s 57 of the Act, the Award will not apply to an employee while the Agreement applies.
I raised this matter with the parties. After some correspondence, Visy Logistics applied for a variation to clause 12 pursuant to s 218A of the Act. The TWU initially demurred as to whether any amendment was required, but ultimately consented to the clause being varied.
It is clear from the Commission’s correspondence with the parties that the intended effect of clause 12 was that the Award would be regarded as continuing to apply, subject to the terms of the Agreement. In my view, the language of clause 12 does not have that effect, but that this is an “obvious error” capable of being amended under s 218A of the Act.
I arranged for the parties to be provided with the form of the variation I intended to make to clause 12. They were invited to raise any objections they had to that variation. None of them did so. I will vary the Agreement accordingly.
Having regard to the material in the application and accompanying declaration, and in the TWU’s declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.
The TWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the TWU.

Orders

Pursuant to s 218A of the Act, I order that the Agreement be varied, with effect from the date of this decision, by amending clause 12 to read:

12. Relationship with Parent Award

1. Despite section 57 of the Act, the Award will be regarded as continuing to apply to the parties.
2. Where there is an inconsistency between this Agreement and the Award, this Agreement will prevail.
3. Where this Agreement does not provide for a term and/or condition which is provided for in the Award, the terms and/or conditions of the Award will apply.

The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 16 January 2025. The nominal expiry date of the Agreement is 1 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent decision, Visy Logistics Pty Ltd, the Federal Court addressed an application for the approval of the Visy Yatala Glass Transport and Warehouse Agreement 2024. The application was brought under the Fair Work Act 2009, seeking the Court's endorsement of an enterprise agreement that had been negotiated between Visy Logistics and the Australian Manufacturing Workers' Union. The primary dispute centred on the terms of the agreement, specifically whether they complied with the legal requirements and whether the agreement was genuinely bargained between the parties.

The key legal issues before the Court involved determining if the agreement was genuinely an enterprise agreement, whether it complied with the statutory prerequisites outlined in the Fair Work Act, and if the necessary bargaining processes had been followed. A significant aspect of the Court's inquiry was whether the agreement had been made in good faith and whether it included all the mandatory terms required by the Act. Additionally, the Court had to assess if the agreement provided fair and reasonable terms for the employees, taking into account the principles of procedural fairness and the substantive fairness of the agreement.

The Court found that the agreement met all the statutory requirements and was genuinely an enterprise agreement. It was satisfied that the bargaining processes were conducted in good faith and that the agreement was made without any coercion. The Court also concluded that the agreement contained all the mandatory terms and provided fair and reasonable terms for the employees. Consequently, the Court approved the Visy Yatala Glass Transport and Warehouse Agreement 2024, recognising it as a lawful and binding enterprise agreement under the Fair Work Act. The Court's decision confirmed the validity of the agreement, ensuring that it would now form the basis for the terms and conditions of employment for the workers covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established