BFS Botany Pty Ltd T/A Bidfood Port Botany

[2023] FWCA 1557

[2023] FWCA 1557

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BFS Botany Pty Ltd T/A Bidfood Port Botany

(AG2023/1136)

BIDFOOD PORT BOTANY – ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER P RYAN	SYDNEY, 30 MAY 2023

Application for approval of the Bidfood Port Botany– Enterprise Agreement 2023.

1. On 20 April 2023, BFS Botany Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Bidfood Port Botany – Enterprise Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Late Lodgement

1. Section 185(3) of the FW Act states that an application for approval of an enterprise agreement must be made ‘within 14 days after the agreement is made’, or if in all the circumstances the Commission considers it fair to extend that period - within such further period as the Commission allows.

1. The Form F17 Declaration accompanying the application stated that the Agreement was made on 5 April 2023. The application was therefore lodged one day outside of the 14-day period.

1. The Employer submitted the delay was attributable to an administrative error.

1. Having regard to all of the circumstances, I consider it fair to exercise my discretion under s.185(3)(b) of the FW Act to extend the time for the application to be made until 20 April 2023. An order to that effect will be issued with this decision.

Section 190 Undertakings

1. The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

Sections 186, 187, 188 and 190

1. 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.

National Employment Standards

1. I observe that clauses 2.4.5 and 2.6.2 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.3.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Approval

1. The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 6 June 2023. The nominal expiry date of the Agreement is 1 March 2025.

COMMISSIONER

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