Duluxgroup (Australia) Pty Ltd T/A Duluxgroup

[2022] FWCA 3855

[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

1. 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

1. 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)

1. 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

1. 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

1. 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]

1. 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.

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

1. 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.

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