Duluxgroup (Australia) Pty Ltd T/A Duluxgroup

[2022] FWCA 3855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Duluxgroup (Australia) Pty Ltd T/A Duluxgroup

(AG2022/4415)

Dulux Acratex South Australia Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 3 NOVEMBER 2022

Application for approval of the Dulux Acratex South Australia Enterprise Agreement 2022

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

Undertakings

The Employer has provided written undertakings dated 2 November 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation(s)

The United Workers Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model flexibility clause

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the NERR provided to relevant employees (referring to the year ‘2018’), and the title of the Agreement filed with the Commission (referring to the year ‘2022’).[1] Having regard to the submissions of the Employer, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 November 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Duluxgroup (Australia) Pty Ltd, trading as Duluxgroup, applied for the approval of the Dulux Acratex South Australia Enterprise Agreement 2022. The dispute concerned the terms and conditions of employment for employees in the Acratex division of the company in South Australia. The primary issue was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved assessing the agreement's compliance with procedural fairness, good faith bargaining, and the protection of employee rights.

The Fair Work Commission examined whether the agreement was genuinely negotiated, if the parties had engaged in good faith bargaining, and whether the agreement provided for fair terms and conditions of employment. The Commission also considered whether the agreement adequately addressed the bargaining process, including whether it was made without coercion, duress, or any other improper influence. Furthermore, the Commission scrutinised whether the agreement provided sufficient protections for employees, particularly in terms of pay rates, hours of work, and other employment conditions.

The Fair Work Commission concluded that the Dulux Acratex South Australia Enterprise Agreement 2022 was approved as it satisfied all the statutory requirements for approval. The Commission found that the agreement was genuinely negotiated, that the parties had engaged in good faith bargaining, and that the agreement provided for fair terms and conditions of employment. The Commission was satisfied that the agreement was made without coercion or duress and provided adequate protections for employees. The Commission approved the agreement, finding it to be in the interests of the employees and the employer.

The Fair Work Commission's final orders included the approval of the Dulux Acratex South Australia Enterprise Agreement 2022, which would now apply to the employees of the Acratex division of Duluxgroup in South Australia. The agreement would regulate the terms and conditions of employment for those employees, including matters such as pay rates, hours of work, and other employment-related conditions. The approval of the agreement marked the conclusion of the bargaining process and the establishment of a new enterprise agreement for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established