BFS Wollongong Pty Limited T/A Bidfood Wollongong

[2022] FWCA 2688

[2022] FWCA 2688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BFS Wollongong Pty Limited T/A Bidfood Wollongong

(AG2022/2215)

Bidfood Wollongong – Enterprise Agreement 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER MATHESON	SYDNEY, 9 AUGUST 2022

Application for approval of the Bidfood Wollongong – Enterprise Agreement 2022.

1. An application has been made for approval of an enterprise agreement known as the Bidfood Wollongong – Enterprise Agreement 2022 (Agreement). The application was made by BFS Wollongong Pty Limited T/A Bidfood Wollongong (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. The name of the Applicant and employer as stated in the Form F16 and Form 17 is ‘BFS Wollongong Pty Limited trading as Bidfood Wollongong’. The ACN provided is 613 271 177. There is a conflict in the Agreement in that clause 1.4(a) identifies the employer as ‘Burleigh Marr Distributions Pty Ltd trading as Bidfood Wollongong’ and clause 1.2 defines the ‘Employer’ as the Applicant, i.e. BFS Wollongong Pty Limited with the ACN 613 271 177. A hearing was held in relation to the application on 26 July 2022 and the parties agreed that the reference to ‘Burleigh Marr Distributions Pty Ltd’ in clause 1.4(a) of the Agreement was an error and the employer covered by the Agreement is intended to be the Applicant. Having considered the balance of the terms of the Agreement and the documentation provided to employees during bargaining, I agree that this is an error and am able to discern that the employer intended to be covered by the Agreement is the Applicant.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.3.4 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.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings during the hearing on 26 July 2022 and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

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

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Transport Workers’ Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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Annexure A