Bickford’s Australia Pty Ltd

[2021] FWCA 5009

[2021] FWCA 5009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bickford’s Australia Pty Ltd
(AG2021/6387)

BICKFORD’S AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021 (PRODUCTION AND LOGISTICS EMPLOYEES)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 16 AUGUST 2021

Application for approval of the Bickford’s Australia Pty Ltd Enterprise Agreement 2021 (Production and Logistics Employees).

[1] Bickford’s Australia Pty Ltd has applied for approval of a single enterprise agreement known as the Bickford’s Australia Pty Ltd Enterprise Agreement 2021 (Production and Logistics Employees) (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The relevant employees were not notified of the time, place and method of the vote in compliance with the requirements of s.180(3) of the Act because some employees received such notice during (and not by the start of) the access period. Evidence was provided to satisfy the Commission that steps were taken to ensure the affected employees received the notification, that all but one of the affected employees did in fact attend and participate in the voting process, and the remaining affected employee was unable to attend by reason of a COVID-19 health direction but was afforded an opportunity to vote nonetheless. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[7] The Agreement was approved on 16 August 2021 and, in accordance with s.54, will operate from 23 August 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

1   [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

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Annexure A