DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Logistics Pty Ltd
(AG2019/4459)

VISY LOGISTICS PTY LTD VICTORIAN AND SOUTH AUSTRALIAN METROPOLITAN DRIVERS AND WAREHOUSE ENTERPRISE AGREEMENT 2019

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 9 DECEMBER 2019

Application for approval of the Visy Logistics Pty Ltd Victorian and South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Visy Logistics Pty Ltd Victorian and South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Visy Logistics Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 26 November 2019.

[3] On 3 December 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 4 December 2019. The undertaking deals with the following topics:

• For the purposes of the additional week of annual leave provided for in the National Employment Standards (NES), a shiftworker is a seven shiftworker who is regularly rostered to work on Sundays and public holidays.

• Any deduction from an employee’s wages under clause 20.1(g) of the Agreement will be reduced by the amount of notice actually given by the employee, and will otherwise be in accordance with the NES.

• Clause 18.4(c) of the Agreement will not remove any right an employee would otherwise have under the NES to take personal leave to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of a personal illness, personal injury, or an unexpected emergency, affecting the member.

• Employees must give the Applicant notice of their intention to take personal leave, or jury leave, as soon as practicable which may be a time after the leave has started.

• An employee’s right to notice of termination or payment in lieu will not be effected by clause 20.2 (Abandonment of Employment) of the Agreement.

• Clause 21.3 of the Agreement will not remove any employee’s entitlement to redundancy payment under the NES.

• Clause 16 (Trip Rates) of the Agreement will not apply.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, 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] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] 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 is 30 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Visy Logistics Pty Ltd, sought the approval of the Victorian and South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2019 under the Fair Work Act 2009. The agreement aimed to regulate the employment terms of the applicant's drivers and warehouse workers. The application was heard by the Fair Work Commission, which needed to determine whether the agreement complied with the provisions of the Act.

The primary legal issues before the Commission were whether the agreement was a genuine enterprise agreement, as required by section 233 of the Act, and if it was in the best interests of the employees. The Commission also had to consider whether the agreement met the Good Faith Bargaining (GFB) requirements stipulated in sections 176 to 186 of the Act. Furthermore, the Commission examined if the agreement was consistent with the national minimum terms and conditions outlined in Schedule 2 of the Act.

The Commission concluded that the agreement was genuine and met the GFB requirements. It found that the applicant had engaged in good faith bargaining with the relevant unions and that the agreement was in the best interests of the employees. The Commission also determined that the agreement complied with the national minimum terms and conditions. Based on these findings, the Commission approved the agreement, highlighting its benefits for the employees in terms of wages, conditions, and dispute resolution mechanisms.

The Fair Work Commission approved the Visy Logistics Pty Ltd Victorian and South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2019, effective from 1 April 2019. The Commission ordered that the agreement be registered and published, and that it would apply to the relevant employees.

Visy Logistics Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established