DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Visy Paper Pty Ltd; Visy Board Pty Ltd
(AG2017/24)

VISY (SMITHFIELD, WARWICK FARM, DANDENONG, O'CONNOR) ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 10 MARCH 2017

Application for approval of the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2016 (the Agreement). The application was made pursuant to Section 185 of the Fair Work Act 2009 (the Act). It has been made by Visy Paper Pty Ltd and Visy Board Pty Ltd as single interest employers (Visy). The employers covered by the Agreement are related bodies corporate or employers engaged in a common enterprise and therefore are single interest employers (Section 172(5)). The Agreement is therefore a single enterprise agreement.

[2] I raised a small number of concerns about the BOOT and the NES with Visy. These matters have been resolved by the submissions received or the undertakings offered in respect to personal leave, maximum weekly hours and redundancy for part time employees. The bargaining representatives have been consulted about the undertakings and have not raised any concerns. I am satisfied that the undertakings do not result in any financial detriment to an employee and are not a substantial change to the Agreement. If the Agreement is approved the undertakings will form part of the Agreement and will be attached to it.

[3] I received F18 Forms from the AMWU, CFMEU and the AWU. These unions will be noted as covered. The AWU was not listed on the F16 Form, however, I have satisfied myself that the AWU had one member at the Dandenong site covered by the proposed Agreement at the time the Agreement was negotiated and made.

[4] I had some concerns that the Agreement had not been properly signed. Visy provided a new signature page which I am satisfied meets the requirements of the Act. I am satisfied that the employee who has signed the Agreement is an employee who is in the class of employees covered by the Agreement. Having considered all of the circumstances I am satisfied that there is a great deal of controversy surrounding this Agreement and there are strong emotions both in support of the Agreement and in opposition to the Agreement. I consider that there are special circumstances which justify an Order that the name of the employee who signed the Agreement be kept confidential.

[5] The Agreement does not on its terms cover maintenance and supervisory employees. The application term of the Agreement is as follows:

“This Agreement applies to all employees at Visy Board Pty Ltd and Visy Paper Pty Ltd (the Company); who are engaged in positions covered by the classification structures described in Appendix 3 or 6 and employed at the sites listed in Appendix 1 of this Agreement, but does…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWCA 1395
Decision Date: 10 MARCH 2017

CaseChat Overview and Summary

Visy Paper Pty Ltd and Visy Board Pty Ltd sought approval of their enterprise agreement from the Fair Work Commission. The application was brought before the Fair Work Court, which is responsible for reviewing and approving enterprise agreements. The legal issues that the court needed to decide included whether the agreement met the statutory requirements, whether the agreement was made in good faith, and whether the agreement was free from any prohibited content. The court examined the process through which the agreement was made, the content of the agreement, and the parties' conduct during the negotiation process. The Fair Work Commission found that the agreement was made in good faith and did not contain any prohibited content. The court approved the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2016. The court found that the agreement was fair and reasonable, and met all statutory requirements.

Orders