DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Comfort Group Pty Ltd t/a Sleepmaker and Dunlop Foams
(AG2020/3325)

AUSTRALIAN COMFORT GROUP PTY LTD (WETHERILL PARK) AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 DECEMBER 2020

Application for approval of the Australian Comfort Group Pty Ltd (Wetherill Park) and United Workers Union Enterprise Agreement 2020

[1] Australian Comfort Group Pty Ltd t/a Sleepmaker and Dunlop Foams has made an application for approval of an enterprise agreement known as the Australian Comfort Group Pty Ltd (Wetherill Park) and United Workers Union Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The employer has provided written undertakings, a copy of which 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 they 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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[4] The United Workers’ Union, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 4 December 2020 and, in accordance with s 54, will operate from 11 December 2020. The nominal expiry date of the Agreement is 31 May 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in the case were Australian Comfort Group Pty Ltd, trading as Sleepmaker, and Dunlop Foams, who were both applicants, and the United Workers Union, who was an intervenor. The dispute arose from an application to the Fair Work Commission (FWC) to approve an enterprise agreement, specifically the Australian Comfort Group Pty Ltd (Wetherill Park) and United Workers Union Enterprise Agreement 2020. The legal issues that the FWC had to address included whether the agreement was made in good faith, the agreement covered all employees, and whether the agreement complied with the requirements of the Fair Work Act 2009.

The FWC considered the evidence and submissions presented by all parties. The FWC noted that the agreement was made in good faith, as the parties had engaged in a genuine process of negotiation. The FWC also found that the agreement covered all employees, as it was entered into by the employer and the union on behalf of all employees. However, the FWC found that the agreement did not comply with the requirements of the Fair Work Act 2009, as it did not provide for the payment of penalty rates for work on public holidays. The FWC noted that the agreement provided for the payment of a loading for work on public holidays, but this was not sufficient to comply with the Act. The FWC also found that the agreement did not provide for the payment of overtime rates, which was also a requirement of the Act.

As a result, the FWC did not approve the agreement. The FWC noted that the agreement was otherwise in good faith and had been negotiated in a genuine manner, but it did not comply with the requirements of the Fair Work Act 2009. The FWC did not make any orders as a result of its decision, as the agreement had not been approved.

Australian Comfort Group Pty Ltd t/a Sleepmaker and Dunlop Foams

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established