DuluxGroup (Australia) Pty Ltd

[2021] FWCA 7186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

DuluxGroup (Australia) Pty Ltd
(AG2021/8599)

DULUX AUSTRALIA POWDER AND INDUSTRIAL COATINGS POUND ROAD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 21 DECEMBER 2021

Application for approval of the Dulux Australia Powder and Industrial Coatings Pound Road Enterprise Agreement 2021.

[1] DuluxGroup (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Dulux Australia Powder and Industrial Coatings Pound Road Enterprise Agreement 2021 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 26.8 – Public holidays.

• Clause 29.9 – Summary dismissal.

• Appendix 5 – Redundancy.

• Clause 33 – Termination (deductions).

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

[6] The Agreement was approved on 21 December 2021 and, in accordance with s. 54, will operate from 28 December 2021. The nominal expiry date of the Agreement is 15 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved DuluxGroup (Australia) Pty Ltd and its employees, primarily focusing on the approval of a new enterprise agreement. The application for approval was heard in the Fair Work Commission. The agreement in question was the Dulux Australia Powder and Industrial Coatings Pound Road Enterprise Agreement 2021. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, including whether it complied with the good faith bargaining and substantive fairness tests.

The court was required to determine if the enterprise agreement was genuinely negotiated in good faith and if it contained terms that were substantively fair. Key issues included whether the agreement adequately addressed the interests of the employees, the fairness of the proposed terms, and whether any provisions could be considered unjust. The court also had to consider submissions from both parties and any relevant precedents or statutory provisions.

The Fair Work Commission found that the agreement had been negotiated in good faith and met the substantive fairness test. The Commission emphasised the importance of balancing the needs and interests of both employers and employees. It noted that the agreement provided for fair and reasonable terms, including provisions for wages, working conditions, and dispute resolution mechanisms. The Commission concluded that the agreement did not unfairly disadvantage either party and was therefore approved.

The final order of the Commission was the approval of the Dulux Australia Powder and Industrial Coatings Pound Road Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and both parties were bound by its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established