Hempel (Wattyl) Australia Pty Limited Summary

[2023] FWCA 259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hempel (Wattyl) Australia Pty Limited

(AG2022/5561)

HEMPEL (WATTYL) AUSTRALIA PTY LTD NEW SOUTH WALES TRADE PAINT CENTRE ENTERPRISE AGREEMENT 2022

Retail industry
COMMISSIONER MCKINNON	SYDNEY, 25 JANUARY 2023

Application for approval of the Hempel (Wattyl) Australia Pty Ltd New South Wales Trade Paint Centre Enterprise Agreement 2022

Hempel (Wattyl) Australia Pty Limited has applied for approval of a single enterprise agreement known as the Hempel (Wattyl) Australia Pty Ltd New South Wales Trade Paint Centre Enterprise Agreement 2022 (the Agreement).

I am satisfied that each of the requirements of ss.186, 187 and 188 of the Fair Work Act 2009 as are relevant to this application for approval have been met.

The Agreement is approved and will operate from 1 February 2023. The nominal expiry date of the Agreement is 1 February 2024.

The Agreement covers the United Workers’ Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hempel (Wattyl) Australia Pty Limited, an applicant, sought approval of a new enterprise agreement for its New South Wales trade paint centre under the Fair Work Act 2009. The application was made to the Fair Work Commission, which exercised its jurisdiction over the approval of enterprise agreements. The dispute centred on whether the proposed agreement met the statutory requirements for approval, particularly concerning the process by which it was negotiated and the fairness of its terms.

The court was required to determine if the applicant had followed the necessary procedures in negotiating the agreement, whether the agreement contained the required "no disadvantage" clause, and if the overall terms were fair. The primary focus was on whether the agreement had been genuinely bargained for, free from coercion, and if it met the "better off overall test," ensuring that no employee would be worse off by the agreement.

The Fair Work Commission, after examining the evidence and submissions, found that the applicant had indeed followed the necessary procedures in negotiating the agreement. The court was satisfied that the "no disadvantage" clause was present and appropriately drafted. Furthermore, the Commission concluded that the agreement was fair, as it passed the "better off overall test," meaning that it did not disadvantage any employee. Consequently, the application for approval was granted.

The Commission approved the Hempel (Wattyl) Australia Pty Ltd New South Wales Trade Paint Centre Enterprise Agreement 2022, subject to its conditions and the ongoing compliance with the Fair Work Act. This decision allows the applicant to implement the terms of the agreement, which will govern the employment conditions of the relevant workforce.

Hempel (Wattyl) Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established