Visypet Pty Ltd

[2023] FWCA 2362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Visypet Pty Ltd

(AG2023/2252)

THE VISY PLASTICS FORRESTFIELD ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 28 JULY 2023

Application for approval of the Visy Plastics Forrestfield Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the The Visy Plastics Forrestfield Enterprise Agreement 2023 (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 (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 1 June 2023 and the Agreement was made on 26 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Visypet Pty Ltd applied to the Fair Work Commission for approval of the Visy Plastics Forrestfield Enterprise Agreement 2023, which sought to govern the employment conditions of workers at its Forrestfield site in Western Australia. The application arose due to the need for a new enterprise agreement to replace an expired one, and the applicant argued that the proposed agreement was necessary to meet the economic realities of the company and ensure its ongoing viability. The Australian Manufacturing Workers’ Union opposed the application, asserting that the agreement did not adequately protect employees’ rights and entitlements.

The central legal issue before the Commission was whether the proposed enterprise agreement met the statutory criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for terms and conditions that were fair and reasonable, and whether it complied with the relevant provisions of the Act, including the "better off overall test." The Commission also considered whether the agreement adequately addressed employee concerns about job security, wage progression, and other working conditions.

In assessing the application, the Commission examined the evidence presented by both parties, including submissions on economic factors, bargaining outcomes, and employee feedback. The Commission concluded that the proposed agreement was fair and reasonable, meeting the statutory requirements for approval. It found that the agreement provided for appropriate protections and benefits for employees, and that it was likely to contribute to the economic sustainability of the business. Consequently, the Commission approved the Visy Plastics Forrestfield Enterprise Agreement 2023.

The Fair Work Commission approved the Visy Plastics Forrestfield Enterprise Agreement 2023, setting out the terms and conditions of employment for workers at the Forrestfield site. The Commission determined that the agreement satisfied the statutory criteria for approval under the Fair Work Act 2009, including the "better off overall test." The decision affirmed the importance of balancing the economic needs of the business with the rights and protections of employees, and it provided a framework for the continued operation of Visypet's Forrestfield site.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established