J. Blackwood & Son Pty Ltd
[2024] FWCA 3633
•18 OCTOBER 2024
| [2024] FWCA 3633 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
J. Blackwood & Son Pty Ltd
(AG2024/3543)
BLACKWOODS GREYSTANES WAREHOUSE BUSINESS PARTNERSHIP AGREEMENT 2024 - 2026
| Warehouse Distribution, Sales, Customer Service and Trade Stores industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 18 OCTOBER 2024 |
Application for approval of the Blackwoods Greystanes Warehouse Business Partnership Agreement 2024 - 2026
Introduction
J. Blackwood & Son Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Blackwoods Greystanes Warehouse Business Partnership Agreement 2024 - 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by either the Clerks – Private Sector Award 2020 (Clerks Award) or the Storage Services and Wholesale Award 2020 (Storage Award).
Notice of Employee Representational Rights (NERR) - Title
Clause 2 of the Agreement provides that the Agreement will be known as the ‘Blackwoods Greystanes Warehouse Enterprise Agreement - 2024 - 2026’ however, the NERR refers to the Agreement as ‘Blackwoods Greystanes Warehouse Enterprise Agreement 2021 – 2023’. The Employer provided submissions that this matter constituted a minor technical or procedural error.
I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that this matter constituted a minor technical or procedural error for the purposes of s.188(5)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
National Employment Standards (NES) issues
Clause 32.3(i) of the Agreement provides that severance pay is not payable where the Employer finds suitable alternative employment. However, the provision is not subject to an application under s. 120 of the Act.
Clause 27.3 of the Agreement provides that employees will be entitled to up to 5 days paid family and domestic violence leave. This is inconsistent with s.106A(1) of the Act which allows up to 10 days of paid leave.
Clause 30.6 of the Agreement provides that an employee who is absent for three consecutive shifts without notification, contact or prior notice to Blackwoods to advise they will be absent will be considered to have abandoned their employment, subject to there being no exceptional circumstances as to why the employee is unable to make contact. Blackwoods will make a genuine attempt to contact the employee before it confirms the employee has abandoned their employment. This may be inconsistent with s.117 of the Act.
These clauses may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 4.4 of the Agreement, these clauses will be read and interpreted in conjunction with the NES. In addition, the Employer has provided undertakings to address these issues.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
The Agreement omits an additional meal allowance. Under clause 19.5(c) of the Clerks Award, an employee is entitled to an additional meal allowance if overtime exceeds four hours. Further, the Agreement is silent on providing entitlements for employees working during a meal break, inconsistent with clause 15.4 of the Award which provides that an employer must pay an employee who is required to work through their meal break 200% of the minimum hourly rate from when the meal break would have commenced until a meal break is allowed.
Clause 12.1 of The Agreement provides that the span of hours commences at 6am. However, clause 13.3 of the Clerks Award provides for a span of hours that commence at 7am. The rates of pay under the Agreement may not be high enough to compensate Grade 2 employees who regularly start a shift at 6am without being paid overtime.
Clause 13.1 of the Agreement appears to provide that a morning shift means any shift commencing at or after 2am and before 6am and that a penalty of 115% is paid for this shift. The Clerks Award does not provide for an equivalent type of shiftwork. However clause 25.1(b) of the Clerks Award provides that a night shift means a shift finishing after midnight and at or before 7am. Therefore, employees who work hours equivalent to the morning shift under the Agreement, may be entitled to overtime penalties for some hours worked under the Clerks Award.
The Agreement contains allowances lower than the Award that the rates of pay may not be high enough to compensate for. The Meal Allowance under clause 17.3(a) of the Storage Award is $20.90, while the Meal Allowance under clause 17.1(g) of the Agreement is $20.39. The Damaged Personal Effects Allowance under clause 17.3(e) of the Storage Award is $1,121, while this same entitlement under clause 17.1(g) of the Agreement is $1,120.08. Under clause 17(d) of the Agreement a meal allowance is paid if an employee works overtime for more than 2 hours. Under clause 17.3(a) of the Storage Award an employee is entitled to a Meal Allowance if they work more than one hour of overtime, while under clause 19.5(a) of the Clerks Award a meal allowance is paid if an employee works overtime for more than 1.5 hours.
Clause 12.5 of the Agreement states that the Employer will ask for volunteers in the first instance before changing an employee’s rostered days or shift due to business needs and, if there are insufficient volunteers, the company can change the employee’s rostered shift by giving the employee 14 days’ notice. In contrast, day workers cannot be moved to the afternoon shift without consent under clause 20.2 of the Storage Award.
Section 190 Undertakings
The employer provided written undertakings to address the above BOOT and NES issues. A copy of the undertakings is attached in Appendix 2. 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. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, 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.
Section 183 Bargaining Representatives
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 wants the Agreement to cover it.
In accordance with s.201(2), I note that the Agreement covers the SDA.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 October 2024. The nominal expiry date of the Agreement is 30 April 2027.
DEPUTY PRESIDENT
[1] [2019] FWCFB 318.
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