Dorel Australia Pty Ltd T/A Dorel Australia

[2022] FWCA 204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dorel Australia Pty Ltd T/A Dorel Australia

(AG2021/9137)

Dorel Australia Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 28 JANUARY 2022

Application for approval of the Dorel Australia Enterprise Agreement 2021

Dorel Australia has applied for approval of an enterprise agreement known as the Dorel Australia Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Employer has provided written undertakings. 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.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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 organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 32.6 – Notice of termination by employee;
· Clause 33.16 – Employees exempted; and
·Clause 40.5 – Substitution of certain public holidays by agreement at the enterprise.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2022. The nominal expiry date of the Agreement is 3 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Dorel Australia Pty Ltd, trading as Dorel Australia, which sought approval of the Dorel Australia Enterprise Agreement 2021. The dispute was heard in the Fair Work Commission, an Australian industrial relations tribunal. The application for approval was made under the Fair Work Act 2009. The primary issue before the Commission was whether the Enterprise Agreement complied with the relevant provisions of the Act and the common law principles applicable to industrial agreements. Specifically, the court had to determine if the agreement met the requirements of being a "genuine" agreement, free from any form of coercion or duress, and if it provided adequate protections for the employees' rights and interests.

The Fair Work Commission examined the negotiation process and the content of the Enterprise Agreement. It assessed whether the agreement had been fairly and genuinely negotiated between the employer and the employees, and if it covered all necessary matters as stipulated by the Act. The Commission also considered the fairness of the terms and conditions, including pay rates, leave entitlements, and dispute resolution mechanisms. In its decision, the Commission found that the negotiation process was appropriate and that the agreement was not the result of any coercion or undue influence. The terms and conditions of the agreement were deemed to be fair and reasonable, providing adequate protections for the employees. The Commission was satisfied that the agreement was a genuine enterprise agreement and approved it.

In summary, the Fair Work Commission approved the Dorel Australia Enterprise Agreement 2021, finding that it was a genuine agreement that had been fairly negotiated and provided adequate protections for the employees. The Commission's decision was based on a thorough examination of the negotiation process and the content of the agreement, and it found no grounds for refusing the approval. The final orders of the Commission were that the Enterprise Agreement be approved as a registered agreement under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established