DuluxGroup Australia Pty Ltd

[2022] FWCA 3165 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DuluxGroup Australia Pty Ltd

(AG2022/3623)

MERRIFIELD ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 12 SEPTEMBER 2022

Application for approval of the MERRIFIELD ENTERPRISE AGREEMENT 2022

An application has been made for approval of an enterprise agreement known as the MERRIFIELD ENTERPRISE AGREEMENT 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by DuluxGroup Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in a substantial change to the Agreement. The undertaking is 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.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 10(a) 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:

Clause 5.3(e) provides that if an employee cannot attend work due to illness, the employee is required to notify the Production Leader as soon as possible prior to the commencement of the shift. This appears to provide a more stringent notice requirement than permitted by s 107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

Clause 6.4(b)(ii) provides that as an alternative to working out a period of notice, the Employer at its sole discretion may require employees to take annual leave. However, s 117 of the Act does not enable an employer to unilaterally reduce an employee’s payment in lieu of notice in this way.

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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 August 2022. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

DuluxGroup Australia Pty Ltd recently applied to the Fair Work Commission for approval of the Merrifield Enterprise Agreement 2022. The agreement concerns the terms and conditions of employment for workers within the Merrifield manufacturing site. The dispute centred around whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically if it was a simple, genuine, and independent agreement.

The court had to determine if the agreement was simple in terms of its language and structure, if it was genuinely negotiated between the parties, and if it reflected the independent bargaining of the parties. This involved examining the negotiation process, the content of the agreement, and whether there was any undue influence or coercion. The court also considered if the agreement met the "better off overall test" to ensure that no party was disadvantaged by the terms of the agreement.

In its decision, the Fair Work Commission found that the agreement was simple, having been drafted in clear and accessible language. The commission determined that the negotiation process was genuine, with both parties actively participating in the discussions. The agreement was found to be the product of independent bargaining, with no evidence of undue influence or coercion. Finally, the commission confirmed that the agreement met the better off overall test, as it provided improved conditions for the employees without disadvanting the employer. As a result, the commission approved the Merrifield Enterprise Agreement 2022.

The Fair Work Commission ordered that the Merrifield Enterprise Agreement 2022 be approved and registered, effective from the date of the decision. The agreement was to be provided to all employees and the employer, and it was to be made available for public inspection. The commission also noted that any disputes arising from the agreement would be subject to the dispute resolution procedures outlined within the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established