Visy Paper Pty Ltd T/A Visy Recycling

[2013] FWCA 993

[2013] FWCA 993

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
(AG2013/90)

VISY RECYCLING SOUTH AUSTRALIAN WINGFIELD MRF COLLECTIVE AGREEMENT 2012

Waste management industry
COMMISSIONER HAMPTON	ADELAIDE, 13 FEBRUARY 2013

Application for approval of the Visy Recycling South Australian Wingfield MRF Collective Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Visy Recycling South Australian Wingfield 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), 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 5 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 now appended to the Agreement as approved.

[5] I have sought the views of the AMWU as the employee bargaining representative on the undertakings. The AMWU supports all of the undertakings other than that associated with clause 27.1 Annual Leave of the Agreement.

[6] The concern I raised with the parties was that clause 27.1b) referred to an employee deemed “as a shift work” for the purposes of an additional week of annual leave. Leaving aside the grammatical problem, there was no definition of shift worker within the Agreement. I note that the relevant modern award 1 does not contain a definition of shift worker for the purposes of the NES and accordingly no concerns with s.196 or the NES arise in this case.2 The issue is one of clarification so as to properly apply the relevant statutory approval tests.

[7] The proposed undertaking reflects the apparent intention of the parties, as confirmed during the conference by the employee delegates who participated. The proposed undertaking (and the undertakings collectively) do not in that context cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement. 3

[8] On that basis I accepted the undertakings pursuant to s.190 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2013. The nominal expiry date of the Agreement is 12 February 2015.

COMMISSIONER

 1   Waste Management Award 2010.

 2   See the discussion of the operation of s.196 and the NES in the context of an enterprise agreement in Ramsay Health Care Australia Pty Ltd T/A Greenslopes Private Hospital v The Australian Workers' Union of Employees, Queensland[2012] FWAFB 4033.

 3   S..190(3) of the Act.

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