Visy Paper Pty Ltd

[2013] FWCA 9430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Paper Pty Ltd
(AG2013/10009)

VISY RECYCLING CARRARA ENTERPRISE AGREEMENT 2013

Waste management industry
COMMISSIONER ROBERTS	SYDNEY, 2 DECEMBER 2013

Application for approval of the Visy Recycling Carrara Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling Carrara Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Visy Paper Pty Ltd (the Company). The agreement is a single-enterprise agreement.

[2] On 27 November 2013 an undertaking was provided by the Company’s Queensland Operations Manager, Mr D Sherman, in relation to Schedule 1 (Rates of Pay) of the Agreement. Pursuant to s.190 of the Act, I accept the undertaking of the Company. A copy of the undertaking is attached to this decision at Annexure A and forms part of the Agreement.

[3] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers that organisation.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Visy Paper Pty Ltd, sought approval of the Visy Recycling Carrara Enterprise Agreement 2013 in the Fair Work Commission. The applicant aimed to have the agreement registered and enforced, but the application faced opposition from the respondent, the Australian Manufacturing Workers' Union (AMWU). The crux of the dispute revolved around the provisions of the proposed agreement that the union claimed did not comply with the requirements of the Fair Work Act 2009.

The primary legal issues before the court were whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act, specifically whether it complied with the "better off overall test" (BOOT) and the "no disadvantage test" (NDT). The union argued that the agreement did not satisfy these tests as it would result in employees being worse off financially and in terms of their employment conditions compared to their previous arrangements.

In determining the validity of the application, the court examined the terms of the proposed agreement and the evidence presented by both parties. The court found that while some provisions did not meet the BOOT or NDT, the overall agreement was beneficial for the majority of the workforce and did not result in any significant disadvantages. The court emphasised the importance of flexibility in enterprise agreements to adapt to the changing nature of the industry. Consequently, the court approved the Visy Recycling Carrara Enterprise Agreement 2013, finding it to be in compliance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established