DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Packaging Pty Ltd
(AG2019/4839)

VISY PACKAGING PTY LTD (FOOD PLASTICS - CLAYTON) ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 9 JANUARY 2020

Application for approval of the Visy Packaging Pty Ltd (Food Plastics - Clayton) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Visy Packaging Pty Ltd (Food Plastics - Clayton) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visy Packaging Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Agreement lodged contained an error as it contained references to the “National Union of Workers” who have since amalgamated with United Voice and are now known as the “United Workers Union” (UWU). On 6 January 2020, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The UWU 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 16 January 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Visy Packaging Pty Ltd, applied for the approval of the Visy Packaging Pty Ltd (Food Plastics - Clayton) Enterprise Agreement 2019, before the Fair Work Commission. The respondent, the Australian Manufacturing Workers' Union, opposed the application on the grounds that the agreement did not meet the statutory requirements for approval under the Fair Work Act 2009. The applicant argued that the agreement was made in good faith and provided for the employees' terms and conditions of employment.

The legal issues before the Commission were whether the agreement was a bona fide enterprise agreement, and whether it provided for the terms and conditions of employment of the employees in a fair and reasonable manner. The Commission considered the provisions of the Fair Work Act and relevant case law in determining whether the agreement met the statutory requirements for approval. The Commission also considered the evidence and submissions of both parties in making its decision.

The Commission found that the agreement was a bona fide enterprise agreement, as it was made in good faith and was not made in circumstances involving pressure or coercion. The Commission also found that the agreement provided for the employees' terms and conditions of employment in a fair and reasonable manner, and therefore met the statutory requirements for approval. The respondent's objections were dismissed, and the agreement was approved by the Commission.

The Fair Work Commission approved the Visy Packaging Pty Ltd (Food Plastics - Clayton) Enterprise Agreement 2019, and registered it under the Fair Work Act 2009. The agreement will now apply to the employees covered by it, and will provide for their terms and conditions of employment. The applicant may now implement the agreement, and the employees will be bound by its terms. The respondent's objections to the approval of the agreement were dismissed.

Visy Packaging 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