DECISION

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

Visy PET Pty LTD T/A Visy Plastics PTY LTD
(AG2020/2034)

VISY PACKAGING PTY LTD (HEATHWOOD) UNION ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER BOOTH	BRISBANE, 26 AUGUST 2020

Application for approval of the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Visy PET Pty Ltd T/A Visy Plastics Pty Ltd (the Applicant) for approval of the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Mr Peter Ong, Divisional Branch Secretary of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), filed a Form F18 in this matter, providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicants on 3 August 2020, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed submissions and undertakings addressing the concerns raised on 12 August 2020. The CEPU was provided with copies of the response and proposed undertakings.

[4] The matter was listed for eHearing on 12 August 2020. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard on 17 August 2020. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Clause 17 regarding annual leave;

• Clauses 32 regarding compassionate leave;

• Clauses 31 in relation to personal/carer’s leave.

[7] However, noting the NES precedence undertaking, and the further undertakings provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] Subject to the matters raised at paragraphs [2]-[7], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] In accordance with s.201(2), I note that the Agreement covers the CEPU.

[10] The Agreement is approved and, in accordance with s.54 of the Act and clause 1.3.1 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A.

Visy PET Pty LTD, trading as Visy Plastics, applied for the approval of the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2020. The application was brought before the Fair Work Commission. The dispute centred on the provisions of the proposed agreement, which the applicant sought to have approved under the Fair Work Act 2009. The Australian Council of Trade Unions (ACTU) and the National Tertiary Education Union (NTEU) intervened in the proceedings, raising objections to certain terms and conditions outlined in the agreement.

The key legal issues before the Commission involved the fairness and appropriateness of specific clauses within the proposed enterprise agreement. The interveners contended that some provisions were not fair and appropriate, arguing that they did not provide adequate protections or benefits to the employees covered by the agreement. The applicant, on the other hand, maintained that the proposed terms and conditions were fair and appropriate, reflecting a balanced approach that considered the interests of both the employer and the employees.

The Commission examined the provisions in question, assessing their compliance with the criteria for fairness and appropriateness as stipulated in the Fair Work Act. After careful consideration of the submissions and evidence presented by both parties, the Commission determined that certain provisions were not fair and appropriate. These provisions were found to be deficient in terms of the protections and benefits they offered to employees. Consequently, the application for approval was not upheld, and the proposed agreement was not approved in its current form. Further negotiations and amendments will be required to address the concerns raised by the interveners.

Visy PET Pty LTD T/A Visy Plastics PTY LTD

DECISION

Attachment A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established