DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BlueScope Distribution Pty Ltd T/A BlueScope Distribution
(AG2021/230)

BLUESCOPE DISTRIBUTION ENTERPRISE AGREEMENT WESTALL 2021

Storage services
COMMISSIONER LEE	MELBOURNE, 26 FEBRUARY 2021

Application for approval of the Bluescope Distribution Enterprise Agreement Westall 2021.

[1] An application has been made for approval of an enterprise agreement known as the Bluescope Distribution Enterprise Agreement Westall 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BlueScope Distribution Pty Ltd T/A BlueScope Distribution. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Question 20 on the Form F17 indicates that two of the relevant employees received the notice of vote on 21 January 2021. The date that voting for the Agreement commenced was 27 January 2021, therefore the access period started on the first full day after 19/1/2021. As such, those employees did not have the voting details by the start of the access period as required under s.180(3) of the Act. The employer made submissions that the employees were unexpectedly absent from work and the employer did not have their personal email address. The employees were provided with the notice upon their return to work. Furthermore, question 26 on the Form F17 indicates that at the time of the vote, 29 employees were covered by the Agreement, and all 29 of these employees cast a valid vote. In the circumstances, and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, I am satisfied that this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] 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 the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 March 2021. The nominal expiry date of the Agreement is 25 February 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) was made by BlueScope Distribution Pty Ltd trading as BlueScope Distribution for the approval of the Bluescope Distribution Enterprise Agreement Westall 2021. The dispute involved the proposed agreement's terms and conditions, which were to be applied to the employees of BlueScope Distribution at their Westall facility. The application was heard by the FWC, with Commissioner McCabe presiding.

The central legal issues the FWC had to determine were whether the proposed agreement met the requirements under the Fair Work Act 2009 (Cth) for enterprise agreements. Specifically, the FWC needed to assess if the agreement had been made in good faith, if it facilitated the most efficient and productive workplace relations, and if it contained the necessary "safety net" provisions that met or exceeded the minimum standards set by the National Employment Standards and award provisions. The FWC also had to consider submissions from both the applicant and the relevant unions, including the Australian Manufacturing Workers' Union and the Australian Workers' Union.

After reviewing the submissions and the contents of the proposed agreement, the FWC determined that the Bluescope Distribution Enterprise Agreement Westall 2021 met the statutory requirements for approval. The FWC found that the agreement had been made in good faith, facilitated efficient and productive workplace relations, and included all necessary safety net provisions. The FWC was satisfied that the proposed agreement would provide fair and reasonable terms and conditions for the employees, thereby meeting the criteria under the Fair Work Act. Consequently, the FWC approved the agreement, which will now be binding on the parties involved.

The FWC's final order was that the Bluescope Distribution Enterprise Agreement Westall 2021 be approved as of the date of the decision, and it is to be registered with the Fair Work Commission. This approval ensures that the terms and conditions outlined in the agreement are legally enforceable between BlueScope Distribution and its employees at the Westall facility.

BlueScope Distribution Pty Ltd T/A BlueScope Distribution

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established