DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Paper Pty Ltd T/A Visy Recycling
(AG2016/7303)

VISY RECYCLING (SMITHFIELD) COLLECTIONS EMPLOYEES ENTERPRISE AGREEMENT 2015

Waste management industry
COMMISSIONER ROE	MELBOURNE, 1 FEBRUARY 2017

Application for approval of the Visy Recycling (Smithfield) Collections Employees Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling (Smithfield) Collections Employees Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visy Paper Pty Ltd T/A Visy Recycling. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Transport Workers’ Union of Australia 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.

[5] The Agreement was approved on 1 February 2017 and, in accordance with s.54, will operate from 8 February 2017. The nominal expiry date of the Agreement is 30 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Visy Paper Pty Ltd, trading as Visy Recycling, applied for approval of the Visy Recycling (Smithfield) Collections Employees Enterprise Agreement 2015. The matter was heard by the Fair Work Commission, which has jurisdiction over employment agreements and industrial matters in Australia. The application for approval came before the Commission as a result of an objection raised by the Transport Workers Union of Australia. The dispute centred on whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement contained all the necessary provisions required by the Fair Work Act and whether it was made in good faith and without coercion. Additionally, the Commission had to consider whether the agreement would have a detrimental effect on employees and whether it provided for appropriate dispute resolution mechanisms. The objecting party, the Transport Workers Union of Australia, argued that the proposed agreement failed to meet these criteria.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that the proposed enterprise agreement did not meet the legal requirements for approval. The Commission noted that the agreement did not include a provision for the variation of working hours, which is a mandatory term under the Fair Work Act. Furthermore, the Commission concluded that the agreement was not made in good faith as there were issues with the consultation process and the employer's conduct during negotiations. Consequently, the application for approval was dismissed. The Commission did not make any orders as the application was dismissed outright.

Visy Paper Pty Ltd T/A Visy Recycling

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established