Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd

[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.

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.

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).

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.

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).

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

Annexure A

The matter before the Fair Work Commission involved Visy Paper Pty Ltd, trading as Visy Recycling Pty Ltd, and its employees, represented by the Australian Manufacturing Workers' Union. The dispute centred on the proposed Visy Recycling (Banyule) Enterprise Agreement 2024, which sought to establish new terms and conditions of employment for the employees. The central legal issue was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions, and whether it complied with the procedural requirements for enterprise agreements.

The Commission carefully reviewed the proposed agreement against the statutory framework, focusing on whether it contained terms that were fair and reasonable. The analysis included assessing whether the proposed changes to wages, hours, and other conditions were equitable and in line with industry standards. Additionally, the Commission examined the process followed in negotiating and finalising the agreement to ensure it adhered to the procedural fairness mandated by the Fair Work Act. The evidence presented by both parties was thoroughly considered, including submissions on the impact of the proposed terms on employees and the broader operational context of Visy Recycling.

After a detailed examination of the evidence and legal arguments, the Commission found that the proposed Visy Recycling (Banyule) Enterprise Agreement 2024 was fair and reasonable, and it complied with the procedural requirements under the Fair Work Act. The Commission was satisfied that the agreement provided for equitable terms and conditions and that the process followed in its negotiation was fair. Consequently, the Commission approved the proposed agreement, which will now be binding on the parties.

The Commission's decision was communicated in a detailed written judgment, which outlined the specific findings and reasons for the approval of the enterprise agreement. The judgment emphasised the importance of fair and reasonable terms in enterprise agreements and the need for compliance with the statutory procedural requirements. The final orders included the approval of the Visy Recycling (Banyule) Enterprise Agreement 2024, effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established