Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd

[2025] FWCA 687

[2025] FWCA 687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd

(AG2025/250)

VISY RECYCLING (BANYULE) ENTERPRISE AGREEMENT 2024

Waste management industry
COMMISSIONER FOX	MELBOURNE, 21 FEBRUARY 2025

Application for approval of the Visy Recycling (Banyule) Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the Visy Recycling (Banyule) Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Public holiday substitution: Clause 18 of the Agreement provides for majority agreement between employees and the employer on the substitution of public holidays. Section 115(3) of the Act allows public holiday substitution by agreement between the employee and the employer.

• Refusal of public holiday work: Clause 18 of the Agreement states that employees may be required to work on a public holiday. Section 114 of the Act provides that an employee can refuse this work if the refusal is reasonable.

• Personal/ Carers Leave – Notification Requirements: Clause 21 of the Agreement provides that an employee must notify the employer of an absence due to personal/ carer’s leave within no less than 1 hour prior to the commencement of their shift. This clause also provides that a medical certificate or statutory declaration shall be required for absences that are either greater than one day, or on the second/ subsequent single day absences. Section 107 of the Act provides that notice must be given as soon as practicable (which may be a time after the leave has started) and that the evidence required is one that would satisfy a reasonable person.

• Compassionate Leave for Stillbirth: Clause 22 of the Agreement provides for compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. Pursuant to s.104(1)(b) and (c) of the Act, compassionate leave is available in circumstances where a child is stillborn, where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive; or the employee, or the employee’s spouse or de facto partner, has a miscarriage.

1. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES. The Commissioner also notes that pursuant to clause 6 of the Agreement, the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Workers’ Union being a bargaining representative for the Agreement supports the approval of the Agreement and 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.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 28 February 2025. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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<AE528135  PR784636>

Annexure A