Application for approval of the Visy Specialties Penrith Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Visy Specialties Penrith Enterprise Agreement 2025 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Visy Board Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

[4] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

• Clause 12.5(d) of the Agreement provides that the employee shall not be entitled to leave under the clause during any period in respect of which they have been granted any other leave. This appears to be inconsistent with s 89(2) of the Act, which provides that if the period during which an employee takes paid annual leave includes a period of any other leave, the employee is take not to be on paid annual leave.

• Clause 13.1 of the Agreement provides that employees are entitled to payment for their normal ordinary hours of work if the employee was rostered to attend work on the day which is observed as the public holiday and the employer closes the operation for the public holiday. This appears to be inconsistent with s 116 of the Act, which does not provide that the employer must have closed the operation for payment to be made on the public holiday.

• Clause 13.3(a) of the Agreement states that the employer, with the agreement of the employee(s) covered by this Agreement, may substitute another day for any public holidays prescribed in this clause, or have added an additional day to their annual leave accrual (does not include annual leave loading). This appears to be inconsistent with s 116 of the Act, which appears to limit substitution to agreements reached between the employer and an individual employee.

[5] It is apparent that in clause 3 of the Agreement that the number "4" should read "3". The parties agree that this is an obvious error and capable of variation under s 218A of the Act. I shall exercise my power pursuant to s 218A(2)(b) of the Act to correct this obvious error. Clause 3 will now read as follows: This agreement shall commence operation seven (7) days after the approval notice is issued by the Fair Work Commission ("FWC") (increases apply from the 1st August 2025) and shall remain in force until midnight three (3) years after that date expiring on 31st July 2028.

[6] The Agreement is approved and, in accordance with s 54 of the Act will operate from 31 October 2025. The nominal expiry date of the Agreement is 31 July 2028.

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