Visypet Pty Ltd

[2024] FWCA 3712

[2024] FWCA 3712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visypet Pty Ltd

(AG2024/3826)

VISYPET MOORABBIN, AUSTRALIAN WORKERS' UNION AND AUSTRALIAN MANUFACTURING WORKERS UNION ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 31 OCTOBER 2024

Application for approval of the Visypet Moorabbin, Australian Workers' Union and Australian Manufacturing Workers Union Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Visypet Moorabbin, Australian Workers’ Union and Australian Manufacturing Workers Union Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Visypet Pty Ltd (Visypet). The Agreement is a single enterprise agreement.

Undertakings

1. In response to several issues raised with Visypet in relation to its application, it has provided written undertakings, a copy of which are 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. I have sought the views of the bargaining representatives in relation to these undertakings, pursuant to s 190(4) of the Act, and no concerns were raised. The undertakings are taken to be a term of the agreement. The undertakings relate to:

a.The interaction between the Agreement and the National Employment Standards (NES) (NES precedence undertaking); and

b.To include a “reconciliation clause” in respect to annualised salary; and

c.To clarify employees’ entitlements with respect to public holidays.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) distributed to employees between 15 – 17 November 2023 appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

Workplace delegates’ rights.

1. The Agreement does not appear to contain a workplace delegates’ rights clause, as required by s 205A of the Act. However, the Agreement at cl 4 incorporates the terms of the Manufacturing and Associated Industries and Occupations Award 2020. Accordingly, clause 40A of the Award, which provides for workplace delegates’ rights, applies as a term of the agreement.

Interaction with NES

1. Visypet has provided an undertaking in relation to the interaction between the Agreement and the NES – the NES precedence undertaking. This undertaking, which is taken to be a term of the Agreement pursuant to s 191(1) of the Act, provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency.

2. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:   

a.Clause 44 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence undertaking will have no effect to the extent of any inconsistency.

b.Clause 51 of the Agreement appears to provide that that the employer and “employees” may “mutually agree” to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees however, when read in conjunction with the NES undertaking will have no effect to the extent of any inconsistency.

Public holidays

1. Clauses 30 and 51 of the Agreement deal with public holidays. Both clauses might suggest that the entitlement to be absent from work on a public holiday is subject to the Company “determining not to work”. To the extent that these provisions of the Agreement are inconsistent with the Act, they are resolved by an undertaking provided by Visypet which provides that employees are entitled to be absent from work on a day or part-day that is a public holiday in the place whether the employee is based for work purposes , in accordance with s 114(1) of the Act.

Typographical errors

1. In response to concerns raised by the Commission, Visypet advised that the references in clause 49 of the Agreement to clauses 20(a), 20(b), 31 and 40 should read 19(a), 19(b), 30 and 39. I propose to exercise my power pursuant to s 218A(2)(b) of the Act to correct these obvious errors. I have sought the views of the bargaining representatives in relation to this proposition, and there was no objection. Accordingly, the Agreement is varied such that the references in clause 49 to clauses 20(a), 20(b), 31 and 40 are to read 19(a), 19(b), 30 and 39.

Approval

1. On the basis of the foregoing, and 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.

2. The Australian Manufacturing Workers Union, and the Australian Workers Union, both bargaining representatives 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 AMWU and the AWU.

3. The Agreement is approved and, while at clause 3, it appears to provide that it will commence operation from the date of “certification”, in accordance with s.54 of the Act it will operate from seven days from the date of approval, or from 7 November 2024.

COMMISSIONER

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Annexure A