Visy Packaging Pty Ltd T/A Visy Beverage

[2021] FWCA 4713

[2021] FWCA 4713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Packaging Pty Ltd T/A Visy Beverage
(AG2021/5998)

VISY BEVERAGE MOORABBIN AND AUSTRALIAN WORKERS’ UNION AND AUSTRALIAN MANUFACTURING WORKERS UNION ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER WILSON	MELBOURNE, 3 AUGUST 2021

Application for approval of the Visy Beverage Moorabbin and Australian Workers’ Union and Australian Manufacturing Workers Union Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Visy Beverage Moorabbin and Australian Workers’ Union and Australian Manufacturing Workers Union Enterprise Agreement 2021 (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 T/A Visy Beverage. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the agreement.

[3] The Agreement lodged with the Fair Work Commission contains extensive errors in the clause numbering. Page 2 of the Agreement provides the arrangement list of the Agreement stating at what clause number certain subjects are. The numbering of these clauses does not correlate to the clauses throughout the Agreement. The Agreement therefore also contains cross-referencing issues in multiple clauses due to incorrect clause numbers throughout the entire Agreement.

[4] On 14 July 2021, my Chambers wrote to the parties advising that the errors are widespread and while corrections could be invited to the Agreement as made, such are likely to be extensive, and the power for correction within s.586 is likely not able to be used, with the section being confined to corrections or amendments to an application or document relating to a matter before the Commission. 1 Due to the errors with the Agreement arrangement it was put to the parties that the correct approach would be for the Applicant to discontinue the application and undertake again the approval process of the Agreement.

[5] The Applicant responded to advise it was not disposed to discontinue the application. I therefore proposed a process through which the Agreement could be approved.

[6] The Applicant was requested to provide a comprehensive cross-referencing table showing the correct clause number for every clause and clause cross-reference in the Agreement. Once received, I confirmed to undertake a Better Off Overall Test analysis of the Agreement on the amended cross-referencing table.

[7] The Employer provided the cross-referencing table on 20 July 2021. A copy of the cross-referencing table is attached in Annexure B.

[8] The matters I identified as concerns with the Agreement were presented to the parties, and they were provided three working days to respond with submissions or undertakings pertaining to the indicated concerns.

[9] Once I viewed that the matters had been adequately addressed by submissions or undertakings, I requested written confirmation from the Applicant and each of the bargaining representatives that they consent to the Agreement being approved and that they also consent to the approval decision including the cross-referencing table provided by the Applicant.

[10] Written confirmation was provided by each of the Applicant and bargaining representatives.

[11] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[12] The Australian Workers' Union and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 August 2021. The nominal expiry date of the Agreement is 1 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512585  PR732418>

Annexure A

Annexure B

 1   Advantaged Care Pty Ltd v Health Services Union[2021] FWCFB 453 at [41].