DuluxGroup Australia Pty Ltd

[2022] FWCA 3165

[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

1. 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.

1. 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.

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.

1. 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.

1. 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.

1. 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

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Annexure A