Duluxgroup (Australia) Pty Ltd T/A Pental Cleaning Products

[2024] FWCA 3435

[2024] FWCA 3435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Duluxgroup (Australia) Pty Ltd T/A Pental Cleaning Products

(AG2024/3517)

Manufacturing and associated industries
COMMISSIONER REDFORD	MELBOURNE, 2 OCTOBER 2024

Application for approval of the Pental Cleaning Products Metal and Electrical Trades Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Pental Cleaning Products Metal and Electrical Trades Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by DuluxGroup (Australia) Pty Ltd (DuluxGroup).

2. I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters set out in ss 193A(2) – (7). 

3. Noting clause 5.8 of the Agreement, I am satisfied that to the extent the Agreement is less favourable than the National Employment Standards (NES), the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the agreement and the NES. On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

   · Clause 39.1.2 of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees.

   ·     Clause 13.1.4 provides that where an Employee is absent from work for a continuous period of 3 working days without notifying the Company or obtaining prior consent to such absence, this will constitute abandonment of employment.  This clause may be inconsistent with the NES requirements that:

   a) An employer must not terminate an employee’s employment without written notice of termination (at s.117(1) of the Act); and

   b)        An employer must not terminate an employee’s employment without paying any applicable notice in lieu (excluding in circumstances of serious misconduct.

4. An issue was raised by the Commission in relation to the figure stated in clause 43.1.1 of the Agreement with respect to long service leave accrual. The Applicant has provided written undertakings in relation to the matter and a copy of the undertaking is attached in Annexure A. Pursuant to s 190(4) of the Act, the views of The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) were sought in relation to those undertakings. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the agreement.

5. AMWU, a bargaining representative for the Agreement, supports the approval of the Agreement and has given notice under s 183 of the Act that it wants to the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the AMWU.

6. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 9 October 2024.

COMMISSIONER

ANNEXURE A

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