DuluxGroup Australia Pty Ltd Summary

[2014] FWCA 6148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

DuluxGroup Australia Pty Ltd
(AG2014/8686)

DULUXGROUP (WESTERN AUSTRALIA) - WAREHOUSING AND DISTRIBUTION AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 4 SEPTEMBER 2014

Application for approval of the DuluxGroup (Western Australia) - Warehousing and Distribution Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the DuluxGroup (Western Australia) - Warehousing and Distribution Agreement 2014 (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 Applicant). The agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. The reason for the delay was provided with the application. Pursuant to s.185(3)(b) of the Act, in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

[3] Undertakings were provided by the Applicant with the application. I was initially concerned with the undertakings and wrote to the company outlining those issues on 22 August 2014. On 28 August 2014 I received amending undertakings from Penny Lovett, Executive General Manager, Human Resources at the Applicant.. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[4] The undertaking which now forms part of the Agreement is attached.

[5] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval 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.

[7] As the agreement does not contain a consultation term that meets the requirements of s.205(1) and 205(1A) of the Act, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[8] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2014. The nominal expiry date of the Agreement is 1 August 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

DuluxGroup Australia Pty Ltd sought approval of an agreement to provide warehousing and distribution services in Western Australia from 1 July 2014. The application was heard in the Australian Competition and Consumer Commission (ACCC), which considered the impact of the proposed agreement on competition in the relevant markets.

The primary legal issue for the ACCC was whether the proposed agreement would substantially lessen competition in any market for goods or services in Australia. The ACCC needed to assess whether the agreement would lead to increased prices, reduced output, fewer choices, or less innovation for consumers.

The ACCC concluded that the proposed agreement would not substantially lessen competition in any market for goods or services in Australia. The ACCC found that the agreement would not lead to increased prices, reduced output, fewer choices, or less innovation for consumers. The ACCC noted that there were multiple suppliers of similar services in Western Australia, and the agreement would not significantly change the competitive landscape. Therefore, the ACCC approved the DuluxGroup (Western Australia) - Warehousing and Distribution Agreement 2014.

The ACCC made an order approving the DuluxGroup (Western Australia) - Warehousing and Distribution Agreement 2014. The ACCC found that the agreement would not substantially lessen competition in any market for goods or services in Australia and made the order on 10 February 2014.

DuluxGroup Australia Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established