Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd

[2024] FWCA 2678

[2024] FWCA 2678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd

(AG2024/2510)

VISY RECYCLING CARRARA ENTERPRISE AGREEMENT 2023

Waste management industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 19 JULY 2024

Application for approval of the Visy Recycling Carrara Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Visy Recycling Carrara Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visy Paper Pty Ltd T/A Visy Recycling Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The application was required to be filed within 14 days after it was made on 21 June 2024 in accordance with s.185(3) of the Act. As it was not filed until 6 July 2024, it was filed one day after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to be missing the words “single-enterprise” in the first sentence. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

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

·   Clause 28.2 – Public Holidays.

However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Applicant has provided written undertakings. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Transport Workers Union of Australia (TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

1. The TWU raised concerns regarding the Better Off Overall Test (BOOT). I have considered these submissions but have determined that given the more beneficial terms of the Agreement and the undertakings given, the Agreement passes the BOOT. The TWU has also noted a number of administrative errors in respect of clause 11.3, 17.1, 27 and 27.2. These are not matters that can be resolved by way of undertaking. The Agreement was considered, voted on and made in its present form. It is open to the parties to make an application to vary an agreement in accordance with the different provisions available under the Act.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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