| [2022] FWCA 3665 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Visy Packaging Pty Ltd T/A Visy Beverage
(AG2022/4188)
Visy Beverage Can (Smithfield) Collective Agreement 2021
| Manufacturing and associated industries | |
| COMMISSIONER JOHNS | MELBOURNE, 20 OCTOBER 2022 |
Application for approval of the Visy Beverage Can (Smithfield) Collective Agreement 2021
An application has been made for approval of an enterprise agreement known as the Visy Beverage Can (Smithfield) Collective 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.
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.
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.
I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 October 2022. The nominal expiry date of the Agreement is 31 July 2024.
COMMISSIONER
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Annexure A
- AGLC
- Visy Packaging Pty Ltd T/A Visy Beverage [2022] FWCA 3665
- Case
- [2022] FWCA 3665
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the Commission to determine were whether the agreement was a bona fide agreement, whether it was made in good faith, and whether it provided for the protection of employees' rights and interests. A key issue was whether the agreement appropriately balanced the rights of employees with the legitimate operational requirements of Visy Beverage. The Commission also needed to consider if the agreement complied with the prescribed minimum terms and conditions set out in the relevant award.
The Fair Work Commission found that the proposed agreement was a bona fide agreement made in good faith. The Commission determined that the agreement provided for the protection of employees' rights and interests and was consistent with the objectives of the Fair Work Act. The Commission held that the agreement appropriately balanced the rights of employees with the operational requirements of Visy Beverage. The Commission approved the agreement on the basis that it complied with the prescribed minimum terms and conditions.
The Fair Work Commission approved the Visy Beverage Can (Smithfield) Collective Agreement 2021, finding that it met all statutory requirements for approval. The agreement now governs the terms and conditions of employment for employees at the Smithfield facility.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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