Hempel (Wattyl) Australia Pty Ltd

[2023] FWCA 1332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hempel (Wattyl) Australia Pty Ltd

(AG2023/1110)

HEMPEL (WATTYL) AUSTRALIA PTY LTD NATIONAL OPERATIONS ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 10 MAY 2023

Application for approval of the Hempel (Wattyl) Australia Pty Ltd National Operations Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Hempel (Wattyl) Australia Pty Ltd National Operations Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hempel (Wattyl) Australia Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 28 April 2023.

As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

The United Workers’ Union (UWU), 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) of the Act I note that the Agreement covers this organisation.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Hempel (Wattyl) Australia Pty Ltd, a company engaged in the manufacture and sale of paints, coatings and related products, and its employees represented by the National Union of Workers. The dispute arose from the negotiation and subsequent approval of the National Operations Enterprise Agreement 2022, which was intended to regulate the terms and conditions of employment for the employees involved. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement was a genuine enterprise agreement, as required by the legislation, and whether it satisfied the procedural and substantive fairness requirements. The key elements under consideration were whether the agreement had been genuinely negotiated between the employer and the union, and whether it met the "better off overall test" – that is, whether it provided employees with a net benefit in comparison to the existing industrial instruments.

The Commission found that the agreement had been genuinely negotiated and met the better off overall test. It was noted that the union had exercised its bargaining rights effectively and that the employer had engaged in the process in good faith. The Commission also concluded that the agreement contained provisions that were fair and reasonable in all the circumstances, including those relating to wages, hours of work, and other terms and conditions of employment. The Commission approved the agreement, emphasising its view that it represented a fair and reasonable outcome for both the employer and the employees.

As a result of the decision, the Hempel (Wattyl) Australia Pty Ltd National Operations Enterprise Agreement 2022 was approved and registered by the Fair Work Commission. The agreement now governs the employment terms and conditions of the relevant employees, and it will be in effect until the next scheduled review or until it is superseded by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established