Bidfood NSW Pty Limited Trading AS Bidfood Sydney

[2025] FWCA 3202

[2025] FWCA 3202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bidfood NSW Pty Limited Trading AS Bidfood Sydney

(AG2025/3011)

BIDFOOD SYDNEY – ENTERPRISE AGREEMENT 2025

Road transport industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 2 OCTOBER 2025

Application for approval of the BIDFOOD SYDNEY – ENTERPRISE AGREEMENT 2025

Introduction

1. Bidfood NSW Pty Ltd trading as Bidfood Sydney (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Sydney – 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 Clerks – Private Sector Award 2020 (Clerks Award), the Storage Services and Wholesale Award 2020 (Storage Award), the Road Transport and Distribution Award 2020 (Road Transport Award), or the Commercial Sales Award 2020 (Sales Award).

Inconsistencies with the National Employment Standards (NES)

1. The Commission raised the following issues with the Employer as to whether some aspects of the Agreement are inconsistent with the NES:

1. Clause 5.2.5(a) provides that an employee must give the employer notice of taking of leave as soon as is 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 is more stringent than the requirement under s.107(2)(a) of the Act.

2. The notice periods under clauses 2.2, particularly sub-clauses 2.2.3 and 2.2.4 appear to be inconsistent with s.117 of the Act as they may result in employees not receiving their full entitlement.

3. Clause 3.3.4 allows the employer to deduct overpayments from an employee’s termination monies which may be inconsistent with the payment of NES entitlements on termination.

4. Clause 2.4.7(a) does not require an application for the employer to vary redundancy obligations as prescribed by s.120 of the Act.

1. The Employer provided written submissions to address the above NES issues. I note that these issues are resolved by clause 1.3.5 which provides that the Agreement is to be read and interpreted in conjunction with the NES and that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

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 rate of pay for Casual Grade 2 Level 2 Clerks falls below the equivalent Clerks Award rate. As such it appears that these employees cannot be considered better off overall.

2. Clause 4.6 of the Agreement states that time worked less than the ‘minimum engagement’ will be paid at the employee’s base rate of pay. Clause 3.8.3 provides minimum engagements for weekends. All the relevant awards provide for minimum engagements on weekends to be paid at the applicable penalty rate. Accordingly, where part-time or casual employees work less than their minimum engagement on weekends, it appears that they cannot be considered better off overall.

3. Clause 4.1.4(d) of the Agreement states that the casual loading shall not be paid on overtime or public holidays. Under the relevant awards, employees are entitled to receive their casual loading on overtime under clauses 21.1(d) of the Storage 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, casuals 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. Some 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.

4. The shift definitions in the Agreement differ from those in the relevant awards. Clause 3.7.3 of the Agreement defines an afternoon shift as finishing at or after 8pm and before 1am. This shift attracts a 15% penalty at clause 3.7.1. The Agreement is also silent on some other shift definitions and penalties. This affects the employees as follows:

1. Store workers whose afternoon shift finishes after midnight would otherwise be entitled to the higher night shift penalty of 130% pursuant to clause 20 of the Storage Award.

2. Clerical employees whose shift finishes after midnight and are considered permanent night shift workers pursuant to clause 25.1(c) of the Clerks Award may otherwise be entitled to the higher permanent night shift penalty of 130% as per clause 31 of the Clerks Award.

Some rates of pay do not appear high enough to compensate for the lack of night shift penalty, particularly for part time or casual employees.

Section 190 Undertakings

1. The Employer provided a written undertaking and submissions to address the above BOOT issues. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertaking 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 United Workers’ Union (UWU) 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 UWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2025. The nominal expiry date of the Agreement is 1 September 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A