Application for approval of the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2025

[1] Visy Board Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Visy (Smithfield, Warwick Farm, Dandenong, O'Connor) Enterprise Agreement 2025 (the Agreement).

[2] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) 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 AMWU.

[3] There are six employees who will be covered by the Agreement that were not provided with a copy of the Notice of Employee Representational Rights (NERR). Visy provided an explanation for this which I accept. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard these errors.

[4] The following provisions in the Agreement appear to be inconsistent with the National Employment Standards (NES):

• Clause 4.2 states that "all the provisions of the Graphic Arts General Award 2000 .. as it stood on the 1 March 2006 are incorporated into the Agreement" (the pre-reform Award), however the Agreement is silent on notice of termination entitlements. Clause 4.2.1(e)(ii) of the pre-reform Award purports to exclude apprentices from receiving notice of termination.

• The Agreement is silent in relation to public holidays. As the pre-reform Award is incorporated, the public holiday entitlements in the pre-reform Award are also incorporated. Clause 7.5.6(a) of the pre-reform Award states where an employee is absent from the employee's employment on the working day before or the working day after a public holiday without reasonable excuse or without the consent of the employer, the employee will not be entitled to payment for such holiday.

• Clause 7.1 of the Agreement states "the above entitlements are pursuant to the NES except for personal and carers leave at clause 8 of this Agreement." Clause 7.2 of the pre-reform Award dealing with personal leave is also incorporated into the Agreement. Many of these entitlements are less beneficial and provide restrictions not provided for under the NES:

  • - Clause 7.2.3 of the pre-reform Award states that personal leave may accumulate to a maximum of 640 hours. The Act provides that leave accrues progressively and does not provide a limit on the accrual of personal leave;

  • - Clause 7.2.5 of the pre-reform Award regarding personal leave entitlements under the pre-reform Award appear to be in hours not days as per section 96(1) of the Act;

  • - Clause 7.2.5(b) of the pre-reform Award states that in normal circumstances an employee is not entitled to take personal leave to care for an immediate family or household member where another person has taken leave to care for the same person;

  • - Clause 7.2.6 of the pre-reform Award provides that notice should be before the employee's ordinary hours on the first day of such absence. Section 107(2) of the Act states that this is 'as soon as practicable (which may be a time after the leave has started)';

  • - Clause 8.1 of the Agreement states that employees with 12 months or less continuous service will be entitled to accrue an amount of 1/26th of the number of ordinary hours worked during that four-week period of employment. All other employees other than casuals will, on their anniversary date each year, will be credited with 70 hours paid personal leave each year. Section 96 of the Act provides that employees are entitled of 10 days of personal leave and that this accrues progressively;

  • - Clause 8.3 of the Agreement provides for compassionate leave however, it omits the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child, which is more restrictive than s.104(1)(b)(c) of the Act.

[5] The Employer provided a NES undertaking stating that the Agreement will be read and interpreted in conjunction with the NES, and 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 the inconsistency.

[6] I am satisfied the more beneficial entitlements of the NES as per the Employer's undertaking will prevail where there is an inconsistency between the Agreement and the NES.

[7] 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.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2026. The nominal expiry date of the Agreement is 30 September 2028.

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