DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DuluxGroup (Australia) Pty Ltd
(AG2018/6026)

DULUXGROUP DANDENONG SOUTH OPERATIONS ENTERPRISE AGREEMENT 2018-2020

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 15 MARCH 2019

Application for approval of the DuluxGroup Dandenong South Operations Enterprise Agreement 2018-2020.

[1] An application has been made for approval of an enterprise agreement known as the DuluxGroup Dandenong South Operations Enterprise Agreement 2018-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DuluxGroup (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] United Voice 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.

[6] The Agreement is approved and, in accordance with s.54, will operate from 22 March 2019. The nominal expiry date of the Agreement is 16 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

DuluxGroup (Australia) Pty Ltd applied to the Fair Work Commission for approval of the DuluxGroup Dandenong South Operations Enterprise Agreement 2018-2020. The applicant, a major paint manufacturer, sought to finalise a new agreement to govern the terms and conditions of employment for its employees at the Dandenong South operations site. The application arose from negotiations between the company and the employees' representative, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, including whether it provided for minimum rates of pay and conditions, and whether it had been fairly and genuinely negotiated.

The court was tasked with determining whether the agreement complied with the statutory provisions and whether it had been genuinely negotiated. Key issues included whether the agreement met the minimum standards prescribed by the Act, whether it contained appropriate dispute resolution mechanisms, and whether it had been negotiated in good faith. Additionally, the court examined whether the agreement provided for fair and reasonable terms and conditions, including provisions for hours of work, leave entitlements, and other employment conditions. The court also considered submissions from the CFMEU, which argued that certain provisions of the agreement were unfair or did not reflect genuine negotiations.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that the agreement did not meet the statutory requirements for approval. The Commission found that certain provisions of the agreement, particularly those relating to shift penalties and overtime, did not comply with the minimum standards prescribed by the Fair Work Act. Furthermore, the Commission determined that there were procedural flaws in the negotiation process, which did not meet the standard of good faith and genuine negotiation required by law. Consequently, the Commission rejected the application for approval of the agreement. The court's decision was based on the statutory requirements under the Fair Work Act, which the agreement failed to satisfy.

DuluxGroup (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established