Visy Paper Pty Ltd Summary

[2013] FWCA 3602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Visy Paper Pty Ltd
(AG2013/1070)

VISY RECYCLING - NSW OPERATIONS ENTERPRISE AGREEMENT 2012

Timber and paper products industry
COMMISSIONER BULL	SYDNEY, 5 JUNE 2013

Application for approval of the Visy Recycling - NSW Operations Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling - NSW Operations Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] A conference was held before the Commission on 30 May 2103 to discuss a number of concerns the Commission had with respect to the application of the better off overall test.

[3] The Commission notes that the Agreement does not provide an entitlement for a rostered day off. The Waste Management Award 2010 (the Award), being the relevant modern award for the application of the better off overall test, provides an entitlement for a rostered day off at subclause 27.3 of the Award. The employer has advised the Commission that it relies upon subclause 27.3(b)(iv) of the Award as to why it does not provide for a rostered day off. I am satisfied that the employer’s operations are such that it is necessary for employees to work on each day of the week Monday to Friday and those operations would be prejudiced if the employee was given a rostered day off.

Undertakings

[4] With respect to clause 9 - Casual and temporary employment, and in particular, subclause 9.2 of the Agreement, and the entitlement to a 20 per cent casual loading, the Commission requested further information as to how employees engaged as casuals under the Agreement are better off overall as the Award, provides a 25 per cent casual loading entitlement. The Employer has provided an undertaking that an employee engaged as a casual will be paid the appropriate rate for their position classification plus a casual loading of 25 per cent. A further undertaking has been provided by the Employer with respect to subclause 9.2 of the Agreement that in addition to normal overtime rates, a casual employee, while working overtime or outside ordinary hours shall be paid on an hourly basis, one thirty-eighth of the relevant minimum wage prescribed by the Award, plus 10 per cent of ordinary time earnings.

[5] With respect to clause 9 - Casual and temporary employment, and in particular, subclause 9.6 of the Agreement, the employer has provided an undertaking to apply the terms of clause 15 - conversion of causal employment, of the Award, and in particular, the right of a casual employee to request to have their contract of employment converted to full-time or part-time employment.

[6] Following a request from the Commission for further information concerning the application of the better off overall test in regards to the ordinary hours of work in the Agreement, an undertaking with respect to clause 10 - Hours of work - day work, and in particular, subclause 10.1(a), the ordinary span of hours will be 4:00am to 5:00pm, Monday to Friday.

[7] An undertaking with respect to clause 20 - Annual Leave, the provision of five weeks annual leave for continuous shift workers in accordance with the National Employment Standards, has been provided by the employer.

[8] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[9] I have sought the views of the bargaining representatives in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

[10] The Agreement covers employees of Visy Recycling employed by Visy at each of its New South Wales (NSW) sites, excluding 6 Herbert Place Smithfield NSW and 6-10 Burrows Road South, St Peters NSW who perform work within the classifications provided in the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[12] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 12 June 2013. The nominal expiry date of the Agreement is three years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

Visy Paper Pty Ltd applied to the Fair Work Commission for the approval of the Visy Recycling - NSW Operations Enterprise Agreement 2012. The application was opposed by the Construction, Forestry, Mining and Energy Union, which argued that the agreement did not meet the requirements of the Fair Work Act 2009. The dispute centred on the nature of the enterprise agreement, its provisions, and whether it complied with the relevant legislative framework. The legal issues before the Commission were whether the agreement was a genuine enterprise agreement and if it met the criteria for approval as set out in the Fair Work Act. Specifically, the Commission needed to determine if the agreement had been made in good faith, if it contained the required terms and conditions, and if it provided for proper dispute resolution mechanisms. The Fair Work Commission examined the process by which the agreement was made, the content of the agreement, and its alignment with the statutory requirements. The Commission found that the agreement had been made in good faith and contained the necessary terms and conditions. The agreement also provided for appropriate dispute resolution mechanisms, including conciliation and arbitration. Consequently, the Commission approved the Visy Recycling - NSW Operations Enterprise Agreement 2012, finding that it complied with the relevant provisions of the Fair Work Act. The Commission's decision was based on its assessment of the evidence presented and its interpretation of the relevant statutory provisions. The final orders of the Commission were that the Visy Recycling - NSW Operations Enterprise Agreement 2012 be approved and registered, effective from the date of the decision.

Visy Paper Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established