BFS Wollongong Pty Limited Trading AS Bidfood Wollongong

[2025] FWCA 2987

[2025] FWCA 2987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BFS Wollongong Pty Limited Trading AS Bidfood Wollongong

(AG2025/2403)

BIDFOOD WOLLONGONG – ENTERPRISE AGREEMENT 2025

Storage services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 4 SEPTEMBER 2025

Application for approval of the Bidfood Wollongong – Enterprise Agreement 2025

Introduction  

1. BFS Wollongong Pty Limited Trading as Bidfood Wollongong (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Wollongong – Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. 

1. The Agreement will apply to employees who are covered by either the Storage Services and Wholesale Award 2020 (Storage Award), Road Transport and Distribution Award 2020 (Road Transport Award), Clerks - Private Sector Award 2020 (Clerks Award) or Commercial Sales Award 2020. 

National Employment Standards (NES) Issues

1. Clause 5.2.5(a) provides that an employee must give the Employer notice of taking of personal/carer’s, compassionate or family and domestic violence leave as soon as practical (which may be a time after the leave has started) but it is expected that an employee seeking to take leave will provide at least two hours’ notice of their absence prior to the start of their shift. This may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 1.3.4 of the Agreement, clause 5.2.5(a) will be read and interpreted in conjunction with the NES. 

Better off Overall Test (BOOT) Issues  

1. 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: 

1. The Agreement does not provide a minimum engagement period for part time employees.

2. Clause 4.6 states that ‘where the agreement provides for a minimum engagement, save and except for public holidays, and a portion of that time is not worked by the employee, then the time not worked will be paid at the employee’s base rate of pay.’ The Agreement provides minimum engagement periods for Saturdays and Sundays in clause 3.8.3. All of the relevant Awards provide for the minimum engagement periods on weekends to be paid at the applicable penalty rate.

3. Clause 3.2.1(b) of the Agreement provides an annual salary for clerical employees, commercial sales employees and supervisors / managers that appears to be 7.35% – 13.02% above the Storage Award, Clerks Award and Commercial Award. Clause 7.9.2 provides where an employee is paid an annual salary, certain provisions of the Agreement can be excluded for those employees, including wages, shift penalties, weekend penalty rates, allowances, overtime, annual leave loading and public holiday penalties. The Agreement is silent on the safeguards for annualised wage arrangements for clerical employees under clause 18 of the Clerks Award.

4. Clause 4.1.4(d) states that the casual loading shall not be paid on overtime or public holidays. Employees are entitled to receive their casual loading on overtime under clauses 21.1(d) of the Storage Services Award and 21.4(a) of the Clerks Award. Drivers are entitled to a 10% loading for overtime under clause 11.4 of the Road Transport Award. Similarly, casual employees are entitled to their loading applying cumulatively with public holiday penalties under clause 11.1 of both the Storage and Clerks Awards as employees need to be paid their loading for each ordinary hour worked. Rates of pay do not appear high enough to compensate if casuals are required to work overtime or public holidays, particularly given they may do so with few ordinary hours to compensate.

5. Clause 4.1.1(b), Clause 4.1.2(d) and 4.1.4(b) provides for a maximum of 10 ordinary hours per day for full time, part time and casual employees. The Road Transport Award provides that employees are entitled to overtime in excess of 8 hours per day under clause 13.5.

6. Clause 4.1 of the Agreement provides an increased span of hours from 6am to 8pm Monday to Sunday for clerks. Under clause 13.3 of the Clerks Award, ordinary hours may be worked from 7am to 7pm Monday to Friday and 7am to 12:30pm on Saturday, outside of which overtime is payable under clause 21.1. The Employer submitted that clerks are not required to work on Saturdays and Sundays.

Section 190 Undertakings 

1. The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule 1. 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  

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. 

Section 183 Bargaining Representatives  

1. The Transport Workers Union of Australia (TWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. 

1. In accordance with s.201(2), I note that the Agreement covers the TWU.  

Approval 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2025. The nominal expiry date of the Agreement is 30 June 2028.  

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Schedule 1