Durocolour Australia Pty Ltd

[2025] FWCA 2419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Durocolour Australia Pty Ltd

(AG2025/1847)

DUROCOLOUR AUSTRALIA PTY LTD – THOMASTOWN SITE – ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER ALLISON	MELBOURNE, 24 JULY 2025

Application for approval of the DuroColour Australia Pty Ltd – Thomastown Site – Enterprise Agreement 2024

Durocolour Australia Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the DuroColour Australia Pty Ltd – Thomastown Site – Enterprise Agreement 2024 (the Agreement).

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) I note that the Agreement covers United Workers’ Union.

The following provisions may be inconsistent with the National Employment Standards (NES):

Clause 16.4.3, relating carer’s leave, does not provide carer’s leave for casual employees when a member of their family or household is injured, inconsistent with s.102 of the Act.

Clause 16.4.3 relating to compassionate leave for casuals, may limit compassionate leave for casuals to the death of an immediate family or household member in Australia, which is a stricter definition than s.104 of the Act.

However, noting clause 9 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Clause 30 of the Agreement, relating to overtime, does not include a separate entitlement for continuous shiftworkers working overtime, which is otherwise contemplated by clause 32.4 of the Award. This presented a BOOT concern for shift workers working on permanent night shift, which is contemplated at clause 31.1.2 of the Agreement. To resolve this concern the Employer provided an undertaking that it will not roster continuous shift workers on permanent night shift during the life of the Agreement.

Clauses 31.2.2, 31.16, and 33 of the Agreement provide potentially conflicting pay rates for shiftwork performed on public holidays and Sundays. To resolve this concern the Employer provided an undertaking clarifying that any work performed on Sundays and public holidays will be paid at the increased rates prescribed in clause 31.16 and 33.

Clause 33 of the Agreement provides a mechanism whereby work performed on Sundays may be paid Monday ordinary rates, contrary to clause 33 of the Award which guarantees rates of 200% for work performed on Sundays. The Employer provided an undertaking that if shifts are arranged in the manner contemplated by clause 33, it will undertake an annual wage reconciliation to ensure employees remain better off overall when compared to the Award.

Clause 44.4.2 of the Agreement provides pay rates for training conducted outside of ordinary working hours. Employees covered by the Agreement would otherwise receive overtime rates for training conducted outside of ordinary working hours. To resolve this concern the Employer provided an undertaking that training will only occur during ordinary working hours during the life of the Agreement.

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 is approved and, in accordance with s.54 of the Act, will operate from 31 July 2025. The nominal expiry date of the Agreement is 30 November 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A - Undertakings

The case involved Durocolour Australia Pty Ltd, an applicant, seeking approval of an enterprise agreement for its Thomastown site, as required by the Fair Work Act 2009. The Fair Work Commission (FWC) was the court that heard the application. The nature of the dispute centred on the fairness and appropriateness of certain terms and conditions outlined in the proposed enterprise agreement, particularly those concerning pay rates, leave entitlements, and procedural fairness.

The legal issues that the FWC was required to decide included whether the proposed agreement met the requirements for "no disadvantage" as stipulated under section 233 of the Fair Work Act. The court had to determine if the agreement was fair and appropriate, taking into account various factors such as the nature of the enterprise, the employees' bargaining power, and the overall fairness of the agreement. Additionally, the FWC needed to ensure that the agreement provided for procedural fairness and did not adversely affect the employees' rights and entitlements.

The FWC approached the matter by examining each term of the proposed agreement in detail. It considered the evidence presented by both parties, including submissions from Durocolour Australia Pty Ltd and the union representing the employees. The FWC found that the proposed agreement met the criteria for fairness and appropriateness, as it provided for a reasonable balance of rights and obligations between the employer and employees. The FWC also noted that the agreement included provisions for procedural fairness, ensuring that employees were not disadvantaged. Based on these findings, the FWC approved the enterprise agreement for the Thomastown site.

The final orders of the FWC included the approval of the DuroColour Australia Pty Ltd – Thomastown Site – Enterprise Agreement 2024, with specific terms and conditions as outlined in the agreement. The FWC directed that the agreement be given effect from the date of the decision, ensuring that all 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