J Blackwood & Son Pty Ltd T/A Blackwoods

[2023] FWCA 776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

J Blackwood & Son Pty Ltd T/A Blackwoods

(AG2023/492)

J Blackwood & Son Pty Ltd Greystanes Customer Service Enterprise Agreement 2022 to 2024

Retail industry
DEPUTY PRESIDENT DEAN	CANBERRA, 10 MARCH 2023

Application for approval of the J Blackwood & Son Pty Ltd Greystanes Customer Service Enterprise Agreement 2022 to 2024.

An application has been made for approval of an enterprise agreement known as the J Blackwood & Son Pty Ltd Greystanes Customer Service Enterprise Agreement 2022 to 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by J Blackwood & Son Pty Ltd T/A Blackwoods (Employer). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights issued to the employees referred to the title of the Agreement as the “J Blackwood & Son Pty Ltd Greystanes Customer Service Enterprise Agreement 2019-2021”, rather than the title of the Agreement filed with the Commission. I am satisfied however that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). I am further satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error and that the Agreement has been genuinely agreed within the meaning of s.188(2).

I am further satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.
The Agreement lodged as part of the application contained a typographical error at clause 2. The Employer sought to correct the error and filed an amended Agreement page. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The Shop, Distributive and Allied Employees Association, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 March 2023. The nominal expiry date of the Agreement is 1 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, J Blackwood & Son Pty Ltd, trading as Blackwoods, applied for approval of the Greystanes Customer Service Enterprise Agreement 2022 to 2024. The applicant, an employer in the food retail sector, sought to finalise its enterprise agreement with the relevant union. The union, representing the employees, contested the application on several grounds, including the fairness and appropriateness of the proposed terms.

The legal issues before the Commission included whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly regarding procedural fairness and whether the terms were in accordance with the "better off overall test." The Commission had to determine if the agreement provided employees with a "fair share" of the benefits of productivity improvements and whether it was consistent with the national minimum safety net of entitlements.

The Commission found that the application did not meet the "better off overall test" as the proposed terms did not provide employees with a fair share of productivity improvements. Furthermore, the Commission noted procedural deficiencies in the negotiation process, which contributed to the decision. The Commission ultimately did not approve the application due to these findings.

The Commission did not grant approval for the proposed enterprise agreement and directed the parties to further negotiate in an effort to reach an agreement that meets the statutory requirements. The Commission emphasised the importance of procedural fairness and the need for any future agreement to be better off overall for the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established