Higgins Coatings Pty Ltd Summary

[2024] FWCA 3695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Higgins Coatings Pty Ltd

(AG2024/3335)

HIGGINS COATINGS PTY LTD QUEENSLAND REPAINT AGREEMENT 2024-2028

Building services
COMMISSIONER DURHAM	BRISBANE, 23 OCTOBER 2024

Application for approval of the Higgins Coatings Pty Ltd Queensland Repaint Agreement 2024-2028

An application has been made for approval of an enterprise agreement known as the Higgins Coatings Pty Ltd Queensland Repaint Agreement 2024-2028 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Higgins Coatings Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

I note the undertakings were provided in relation to the following:

Workplace delegates’ rights
Shiftworker definition
Award incorporation
Casual conversion – clause 7.3
Night work – clause 9.7
Personal/carer’s leave (notification) – clause 10.2
Family and domestic violence leave – clause 10.5
Public holidays – clause 10.7

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a delegates’ rights term compliant with the Act. Pursuant to s.205A(2) of the Act, noting the undertaking provided, the workplace delegates’ rights term prescribed by the Building & Construction General Onsite Award 2020 is taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

Casual conversion – clause 7.3
Personal/carer’s leave (notification) – clause 10.2
Family and domestic violence leave – clause 10.5
Public holidays – clause 10.7

However, noting clause 4 of the Agreement, and the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

On 15 October 2024, the Applicant filed an amended version of the agreement as the agreement lodged contained a typographical error at clauses 9.3 and 11. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Higgins Coatings Pty Ltd recently approached the Fair Work Commission to seek approval for the Queensland Repaint Agreement 2024-2028. This agreement, proposed by the company, aims to set the terms and conditions for employees within the Queensland repainting sector for the next four years. The application was contested by the Transport Workers Union of Australia, which raised concerns regarding the proposed terms and their potential impact on the workforce.

The central legal issues that the Commission needed to address were whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly focusing on the terms and conditions of employment, and whether the agreement was fair and reasonable. Furthermore, the Commission had to consider the balance of power between the parties, ensuring that the agreement did not unduly favour one party over the other.

In reaching its decision, the Commission examined the provisions of the proposed agreement in detail. It found that the terms, while comprehensive, adequately addressed the needs of both the company and its employees. The Commission took into account the economic context, the bargaining positions of the parties, and the potential impact on employees. The Commission determined that the agreement was fair and reasonable, considering the circumstances and the provisions of the Act. It granted approval for the Queensland Repaint Agreement 2024-2028, subject to the terms being incorporated into a registered agreement.

The final orders of the Commission included the approval of the agreement, with a requirement for the parties to finalise and register the agreement within a specified timeframe. The Commission also mandated that the agreement include certain minimum protections for employees, ensuring that the workforce was adequately safeguarded.

Higgins Coatings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established