Visy Logistics Pty Ltd T/A Visy Logistics

[2022] FWCA 4478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Visy Logistics Pty Ltd T/A Visy Logistics

(AG2022/5167)

Visy Logistics Pty Ltd South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2022

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 19 DECEMBER 2022

Application for approval of the Visy Logistics Pty Ltd South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Visy Logistics Pty Ltd South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Visy Logistics Pty Ltd T/A Visy Logistics (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 14 December 2022 and was determined on the papers.

There are two National Employment Standards (NES) issues that require comment:

· Clause 21.3 of the Agreement provides that an employee who is offered suitable alternative employment but rejects the offer will not be entitled to severance payments, however, the clause is not subject to an application to the Commission as required by s.120 of the Act.

· Clause 20.1(g) of the Agreement provides that if an employee does not provide the required notice of termination, the employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice. This may restrict an employee’s entitlement to payment of NES entitlements (e.g. accrued annual leave) upon termination of employment.

Clause 8 of the Agreement acts as an effective NES precedence clause, in that it states that the NES will apply if it provides a more favourable outcome for employees than a term of the Agreement. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 September 2024.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Visy Logistics Pty Ltd trading as Visy Logistics, and the matter was before the Fair Work Commission. The company sought approval for the Visy Logistics Pty Ltd South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2022. The legal issues before the Commission included whether the agreement met the statutory requirements under the Fair Work Act 2009 and whether it complied with the Fair Work (Registered Organisations) Act 2009, particularly in relation to the process by which it was made.

The Commission examined the application for approval of the enterprise agreement, focusing on the procedural fairness in its development. It considered whether the agreement was genuinely negotiated and whether it adhered to the provisions of the Fair Work Act and the Fair Work (Registered Organisations) Act. The Commission also assessed the transparency and inclusivity of the bargaining process to ensure that it was conducted in good faith and without coercion. In determining the approval of the agreement, the Commission took into account the overall fairness and appropriateness of the terms and conditions outlined within the agreement, ensuring they were not detrimental to the employees' rights and entitlements.

The Fair Work Commission found that the enterprise agreement was genuinely negotiated and complied with the statutory requirements. The Commission was satisfied with the procedural fairness of the bargaining process and determined that the agreement met all necessary legislative criteria. Consequently, the Commission approved the Visy Logistics Pty Ltd South Australian Metropolitan Drivers and Warehouse Enterprise Agreement 2022. The approval was granted on the basis that the agreement was fair and balanced, considering the rights and interests of both the employer and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established