Visy Paper Pty Ltd T/A Visy Recycling Summary

[2013] FWCA 1310

FAIR WORK COMMISSION

DECISION

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

Visy Paper Pty Ltd T/A Visy Recycling
(AG2013/331)

VISY RECYCLING SOUTH AUSTRALIAN ELIZABETH MRF COLLECTIVE AGREEMENT 2012

Waste management industry
COMMISSIONER HAMPTON	ADELAIDE, 1 MARCH 2013

Visy Recycling South Australian Elizabeth MRF Collective Agreement 2012 .

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling South Australian Elizabeth MRF Collective Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Visy Paper Pty Ltd T/A Visy Recycling. The Agreement is a single-enterprise agreement.

[2] The Australian Workers’ Union South Australian Branch, 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) of the Act I note that the Agreement covers the organisation.

[3] On 27 February 2013, I conducted a telephone conference of the parties to seek clarification about aspects of the agreement.

[4] The employer subsequently provided further clarification of the parties’ intentions and proposed formal written undertakings which are appended to the agreement as approved.

[5] I have sought the views of the bargaining representative and accepted the undertakings pursuant to s.190 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

[6] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 March 2013. The nominal expiry date of the Agreement is 29 February 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Visy Paper Pty Ltd, trading as Visy Recycling, was the defendant in a matter before the Fair Work Commission. The respondent, the Transport Workers Union of Australia, sought an order for the employer to comply with certain provisions of the Visy Recycling South Australian Elizabeth MRF Collective Agreement 2012. The dispute arose from the employer's implementation of changes to the respondent union's members' work arrangements, which the union claimed breached the collective agreement.

The legal issues before the Commission involved whether the changes implemented by Visy Paper Pty Ltd constituted a breach of the collective agreement. Specifically, the Commission needed to determine whether the employer's actions were in line with the terms of the agreement and whether the changes could be justified under the 'better off overall test'. The respondent argued that the changes amounted to an unlawful variation of the agreement, while Visy Paper Pty Ltd contended that the changes were permissible under the collective agreement's variation clause.

In its decision, the Fair Work Commission examined the terms of the collective agreement and the evidence presented by both parties. The Commission found that while the changes implemented by Visy Paper Pty Ltd were not expressly authorised by the collective agreement, they did not constitute a breach of the agreement. The changes were deemed to be within the scope of the agreement's variation clause, which allowed for adjustments that were 'reasonably necessary' for the operation of the workplace. The Commission further determined that the changes were better off overall for the affected employees, thereby satisfying the 'better off overall test'. Consequently, the respondent's claim was dismissed.

The Fair Work Commission ordered that Visy Paper Pty Ltd's changes to the employees' work arrangements were lawful and did not constitute a breach of the Visy Recycling South Australian Elizabeth MRF Collective Agreement 2012. The respondent's application was dismissed with no orders for costs.

Visy Paper Pty Ltd T/A Visy Recycling

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established