Visy Paper Pty Ltd T/A Visy Recycling

[2021] FWCA 6061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Visy Paper Pty Ltd T/A Visy Recycling
(AG2021/7428)

VISY RECYCLING MAROOCHYDORE ENTERPRISE AGREEMENT 2021

Waste management industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 30 SEPTEMBER 2021

Application for approval of the Visy Recycling Maroochydore Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement to be known as the Visy Recycling Maroochydore Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Visy Paper Pty Ltd T/A Visy Recycling (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Waste Management Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] The Transport Workers’ Union of Australia (‘TWU’), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2021. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission was for the approval of an enterprise agreement proposed by Visy Paper Pty Ltd, trading as Visy Recycling. The agreement, titled Visy Recycling Maroochydore Enterprise Agreement 2021, sought to govern the terms and conditions of employment for employees working at the Maroochydore facility. The dispute primarily involved the process of ensuring the agreement complied with the requirements of the Fair Work Act 2009, particularly concerning the appropriate bargaining representative and the fairness of the terms and conditions set out within the agreement.

The central legal issues addressed by the Commission included whether the applicant, Visy Paper Pty Ltd, was the appropriate employer to be bound by the proposed agreement and whether the agreement had been genuinely negotiated and was fair in all its aspects. Additionally, the Commission had to consider the procedural fairness in the negotiation process and whether the agreement met the statutory requirements for approval. The Commission also needed to determine if the terms and conditions of the agreement were fair and reasonable, taking into account the various factors prescribed under the Fair Work Act.

In examining these issues, the Commission found that Visy Paper Pty Ltd was indeed the appropriate employer to be bound by the agreement. It was determined that the agreement had been genuinely negotiated and that the process was procedurally fair. The Commission also concluded that the terms and conditions of the Visy Recycling Maroochydore Enterprise Agreement 2021 were fair and reasonable, taking into account the various factors prescribed under the Fair Work Act. Consequently, the Commission approved the agreement, acknowledging that it met all the statutory requirements and was fair to the employees it covered.

The final order of the Fair Work Commission was that the Visy Recycling Maroochydore Enterprise Agreement 2021 be approved as a registered agreement. This decision was based on the findings that the agreement was genuinely negotiated, procedurally fair, and met the criteria for being fair and reasonable under the Fair Work Act. The approved agreement would now govern the employment terms and conditions of the employees at the Maroochydore facility.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established