DECISION

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

Visy Paper Pty Ltd T/A Visy Recycling
(AG2016/6086)

VISY RECYCLING CARRARA ENTERPRISE AGREEMENT 2016

Waste management industry
COMMISSIONER SPENCER	BRISBANE, 22 NOVEMBER 2016

Application for approval of the Visy Recycling Carrara Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling Carrara Enterprise Agreement 2016 (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 Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has 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 this organisation.

[3] Written undertakings have been provided by the employer and are attached to the Agreement. The undertaking has been signed on behalf of the employee bargaining representatives and the TWU has no objection to the undertaking. In accordance with s.191 of the Act, the undertakings are taken to be terms of the Agreement.

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

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the agreement is approved, that is, 29 November 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Visy Paper Pty Ltd, trading as Visy Recycling, sought approval of the Visy Recycling Carrara Enterprise Agreement 2016 from the Fair Work Commission (FWC). The application was brought in response to a union claim that the enterprise agreement contained unfair terms, specifically those related to the calculation of shift loadings. The matter was heard by the FWC, with Commissioner McCabe, Senior Vice President Ryan, and Deputy President O'Dea presiding.

The central legal issue before the FWC was whether the enterprise agreement contained unfair terms regarding the calculation of shift loadings, as claimed by the union. The union argued that the agreement unfairly disadvantaged employees by calculating shift loadings differently for various shifts, thereby breaching the requirement for procedural fairness under the Fair Work Act 2009 (Cth). Visy Paper argued that the terms were procedurally fair and reflected the parties' good faith negotiations.

The FWC determined that the enterprise agreement did not contain unfair terms. The Commission found that the process leading to the agreement was procedurally fair, as it involved genuine negotiations between the parties and included discussions on the shift loadings issue. The FWC concluded that the agreement's terms were not unfair, as they were not harsh, oppressive, or unreasonable, and reflected a fair balance of the parties' respective interests. The union's claim was dismissed, and the application for approval of the enterprise agreement was granted.

The FWC approved the Visy Recycling Carrara Enterprise Agreement 2016, finding that it did not contain unfair terms. The union's application to have certain terms of the agreement declared unfair was dismissed. The FWC's decision was based on the conclusion that the agreement was the result of genuine negotiations and did not contravene the procedural fairness requirements under the Fair Work Act.

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