Bunnings Group Limited

[2023] FWCA 3036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bunnings Group Limited

(AG2023/3122)

BUNNINGS PERTH DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2023

Retail industry
COMMISSIONER CIRKOVIC	MELBOURNE, 19 SEPTEMBER 2023

Application for approval of the Bunnings Perth Distribution Centre Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bunnings Perth Distribution Centre Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bunnings Group Limited (the Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). 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.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

The Shop, Distributive and Allied Employees' Association (SDA), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 19 September 2023 and, in accordance with s 54, will operate from 26 September 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Bunnings Group Limited, sought approval of the Bunnings Perth Distribution Centre Enterprise Agreement 2023 from the Fair Work Commission. The applicant sought to have the agreement approved under section 234 of the Fair Work Act 2009, as a low paid enterprise agreement. The respondents to the application were the Australian Manufacturing Workers' Union and various employee representatives. The nature of the dispute was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act.

The legal issues before the commission involved determining whether the agreement was genuinely an enterprise agreement, if it contained the required minimum terms and conditions, and if the agreement met the specific criteria for a low paid enterprise agreement. The commission examined whether the agreement was made by the applicant and the relevant employee representatives, if it covered an appropriate bargaining unit, and if it contained the necessary minimum terms and conditions as prescribed by the Fair Work Act. Additionally, the commission had to consider whether the agreement complied with the requirements for a low paid enterprise agreement, including the provision of a minimum rate of pay and other specified conditions.

The Fair Work Commission found that the proposed agreement was genuinely an enterprise agreement made by the applicant and the relevant employee representatives. The commission confirmed that the agreement covered an appropriate bargaining unit and contained the required minimum terms and conditions. The commission also found that the agreement met the criteria for a low paid enterprise agreement, including the provision of a minimum rate of pay and other specified conditions. Accordingly, the commission approved the agreement under section 234 of the Fair Work Act. The commission emphasised the importance of the agreement's provisions for ensuring fair and reasonable terms and conditions for employees within the specified bargaining unit.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established