Duluxgroup (Australia) Pty Ltd

[2025] FWCA 128

[2025] FWCA 128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Duluxgroup (Australia) Pty Ltd

(AG2024/4879)

YATES WYEE ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 14 JANUARY 2025

Application for approval of the Yates Wyee Enterprise Agreement 2024

Introduction

1. Duluxgroup (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Yates Wyee Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).

Casual Employees

1. Clause 15.4 of the Agreement does not appear to provide that the casual loading constitutes part of the employee’s all-purpose rate as provided in clause 11.1(c) of the Award.

1. The Employer submitted that the casual loading referred to in clause 15.4 of the Agreement constitutes part of the employees’ all-purpose rate and refers to clause 56 (Appendix A – Pay Rates) of the Agreement, which specifically provides that the hourly rates of pay for casual employees is ‘Inclusive of the Casual Loading’. The Employer further submitted that it does not currently employ any casual employees at its Yates Wyee site.

1. In addition to the above submissions, the Employer provided an undertaking to address this issue.

Span of Hours

1. Clause 26.4 of the Agreement states that the span of hours is 6am-6pm ‘or such other hours as may be agreed between the Company and the majority of employees to accommodate the likes of extended shifts.’ Clause 17.2(d) of the Award states the span may be altered one hour forward or back. Where the span is altered beyond this, it may result in employees not receiving the overtime rates in the Agreement that they would be entitled to under the Award.

1. The Employer provided an undertaking to address this issue.

Early Morning Shifts

1. Clause 30.7 of the Agreement provides for early morning shifts commencing at 4am and before 6am and paid at 112.5%. As the Award does not contain an early morning shift definition, these hours would be paid as overtime if the employees were covered by the Award. Rates of pay in the Agreement may not be high enough to compensate.

1. The Employer submitted that despite the wording in the Agreement, DuluxGroup does not operate an early morning shift as defined in the Agreement, and employees are generally not required to start work before 6:00am. However, the Employer provided an undertaking to address this issue where an employee may be required to work an early morning shift.

Inconsistency with Weekend Penalties

1. Clause 29.8 of the Agreement provides that the minimum payment for work on a Sunday is 3 hours. However, clause 34 provides that the minimum payment for Sunday work is 4 hours. This inconsistency creates confusion as to which minimum applies.

1. The Employer provided an undertaking to address this issue.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Appendix D. 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.

Section 186, 187, 188 and 190

1. 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.

Section 183 Bargaining Representatives

1. The United Workers Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the UWU.
   

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2025. The nominal expiry date of the Agreement is 30 November 2027.

DEPUTY PRESIDENT

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