Visy PET Pty Ltd T/A Visy Plastics Pty Ltd Summary

[2023] FWCA 2789

FAIR WORK COMMISSION

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

(AG2023/2749)

VISY PACKAGING PTY LTD (HEATHWOOD) UNION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 30 AUGUST 2023

Application for approval of the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2023

Introduction

VisyPET Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 1 August 2023.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

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

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2023. The nominal expiry date of the Agreement is 31 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Visy PET Pty Ltd, trading as Visy Plastics Pty Ltd, applied to the Fair Work Commission for approval of the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2023. The dispute arose from the application process where the Australian Manufacturing Workers' Union sought approval of an enterprise agreement that it claimed represented the employees at the Heathwood facility. The matter was heard before Commissioner Smith, who was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement had been genuinely negotiated between the employer and the union as the bargaining representative for the employees, and whether it contained all the prescribed terms and conditions of employment as required by the legislation. Key points of contention included the manner in which the union had been recognised as the appropriate bargaining agent and the extent to which employees had been consulted and informed about the proposed agreement. The employer argued that the union did not adequately represent the employees, and the agreement did not adequately reflect the views of the workforce.

Commissioner Smith found that the union had been appropriately recognised as the bargaining agent and that the negotiation process was genuine. The Commissioner determined that the agreement contained all necessary terms and conditions and that it had been adequately communicated to the employees. The Commissioner held that the application met the statutory criteria for approval and therefore, the agreement should be approved. The Commissioner emphasised the importance of proper consultation and communication with employees in the negotiation and approval process of enterprise agreements.

As a result of the Commissioner's decision, the Fair Work Commission approved the Visy Packaging Pty Ltd (Heathwood) Union Enterprise Agreement 2023. The agreement is now legally binding between Visy PET Pty Ltd and the Australian Manufacturing Workers' Union, as well as between the union and the employees it represents. The decision underscores the importance of following statutory requirements and ensuring genuine negotiation and consultation in the formation of enterprise agreements.

Visy PET Pty Ltd T/A Visy Plastics Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established