| [2022] FWCA 3600 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
DuluxGroup (Australia) Pty Ltd T/A Dulux
(AG2022/4167)
Dulux Trade Centre Enterprise Agreement 2022
| Manufacturing and associated industries | |
| COMMISSIONER CIRKOVIC | MELBOURNE, 20 OCTOBER 2022 |
Application for approval of the Dulux Trade Centre Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Dulux Trade Centre Enterprise Agreement 2022 (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 T/A Dulux. The Agreement is a single enterprise agreement.
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.
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. 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.
The Shop, Distributive and Allied Employees Association, 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 was approved on 20 October 2022 and, in accordance with s.54, will operate from 27 October 2022. The nominal expiry date of the Agreement is 30 September 2025.
COMMISSIONER
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Annexure A
- AGLC
- DuluxGroup (Australia) Pty Ltd T/A Dulux [2022] FWCA 3600
- Case
- [2022] FWCA 3600
- Decision Date
CaseChat Overview and Summary
The primary legal issues the Fair Work Commission had to address were whether the agreement was a "better off overall test" (BOOT) agreement, and whether it contained all the required minimum terms and conditions. The BOOT test requires that the agreement must be at least as good as the applicable awards or other industrial instruments in terms of pay and conditions. The Commission also needed to consider whether the agreement complied with the relevant provisions of the Fair Work Act 2009, including any requirements for protecting employees' rights and interests. Furthermore, the Commission assessed whether the agreement had been genuinely negotiated and whether there was adequate employee representation in the negotiation process.
In reaching its decision, the Fair Work Commission considered the submissions from both Dulux and the unions, as well as the evidence presented on the BOOT test and compliance with the minimum terms and conditions. The Commission determined that the agreement met the BOOT test and contained all the required minimum terms and conditions. It found that the agreement had been genuinely negotiated and that there was adequate employee representation. Consequently, the Commission approved the Dulux Trade Centre Enterprise Agreement 2022, and it will now apply to the relevant employees from the effective date specified in the agreement.
No further orders were made by the Fair Work Commission. The approval of the agreement means that the terms and conditions set out in the agreement will govern the employment of the relevant employees, replacing any previous agreements or applicable awards. The decision provides clarity for both Dulux and its employees regarding the terms of their employment moving forward.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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