Visy Pulp & Paper Pty Ltd Summary

[2023] FWCA 2278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visy Pulp & Paper Pty Ltd

(AG2023/2262)

VISY PULP & PAPER TUMUT ENTERPRISE AGREEMENT 2023

Timber and paper products industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 24 JULY 2023

Application for approval of the Visy Pulp & Paper Tumut Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Visy Pulp & Paper Tumut Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Visy Pulp & Paper Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 20 July 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Timber Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 July 2023. The nominal expiry date of the Agreement is 31 January 2025.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW 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 FW 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 this 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. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

Visy Pulp & Paper Pty Ltd sought approval for the Visy Pulp & Paper Tumut Enterprise Agreement 2023, which aimed to govern the terms and conditions of employment for its employees at the Tumut facility. The application was brought before the Fair Work Commission, where the dispute centred on whether the proposed agreement met the requirements for approval under the Fair Work Act 2009. The primary issue was whether the agreement complied with the provisions that govern enterprise agreements, including those related to minimum wages and conditions, and whether it provided for proper consultation and negotiation processes.

The court was required to determine if the agreement appropriately balanced the interests of the employees and the employer, ensuring it adhered to the statutory obligations and did not unfairly disadvantage any party. This included assessing whether the agreement contained terms that were necessary to prevent, reduce or eliminate workplace bullying, as mandated by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2022. Furthermore, the court needed to confirm that the agreement had been negotiated in good faith and provided for fair and reasonable terms.

In its decision, the Fair Work Commission found that the Visy Pulp & Paper Tumut Enterprise Agreement 2023 was consistent with the legislative framework and met the criteria for approval. The agreement was deemed to provide for fair and reasonable terms, and it included provisions to prevent and address workplace bullying. The Commission noted that the agreement had been negotiated in good faith, and it appropriately balanced the interests of the employer and employees. Consequently, the court approved the enterprise agreement, recognising its compliance with the statutory requirements and its potential to foster a fair and productive workplace environment.

Visy Pulp & Paper Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established