Bunnings Group Limited

[2024] FWCA 4310

[2024] FWCA 4310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bunnings Group Limited

(AG2024/4172)

BUNNINGS BRISBANE DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2024

Retail industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 4 DECEMBER 2024

Application for approval of the Bunnings Brisbane Distribution Centre Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the Bunnings Brisbane Distribution Centre Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bunnings Group Limited (the Applicant). The Agreement is a single enterprise agreement.

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant provided a list of casual employees who were engaged during the relevant period. I found that 18 (eighteen) casual employees should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote. However, I find that by reference to the evidence before me as to the vote that occurred, that whether those eighteen casual employees voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Hence, having regard to the submissions of the Applicant and the evidence before me, I find that this error constitutes a minor procedural and/or technical error in accordance with s.188(2) of the Act.[2] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[3] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]

1. The Agreement does not contain a delegates rights term that is in all respects, no less favourable than the modern award pursuant to s.205A, and on that basis the term in the relevant modern award will apply and the delegates’ rights term in the Agreement at clause 13 will have no effect.

1. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[5] on the basis of the material contained in the application and accompanying declarations, 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.

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

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

·   Clause 10.2(d) – The deduction of monies for annual leave paid in advance in respect of the impact of that, if applicable, on long service leave entitlements.

·   Clause 10.6 – Compassionate leave in respect of confining leave in some circumstances to 1 day where it should be instead 2 days.

· Clauses 6.6(b) and/or 11.3 – may provide for deductions that may be inconsistent with the Act at s.324-326.

1. However, noting clause 1.2(d) 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.

1. The United Workers Union (UWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the UWU.

1. The Agreement is approved and will operate with effect from 6 January 2025. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.

[2] Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].

[3] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

[4] Ibid.

[5] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

<AE527074  PR782062>