Bidfood (Victoria) Pty Ltd T/A Bidfood Geelong Summary

[2022] FWCA 2611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Bidfood (Victoria) Pty Ltd T/A Bidfood Geelong

(AG2022/1671)

Bidfood Geelong Enterprise Agreement 2020

Storage services
COMMISSIONER YILMAZ	MELBOURNE, 2 AUGUST 2022

Application for variation of the Bidfood Geelong Enterprise Agreement 2020

An application was made by Bidfood (Victoria) Pty Ltd T/A Bidfood Geelong pursuant to section 210 of the Fair Work Act 2009 (the Act), seeking approval to vary the Bidfood Geelong Enterprise Agreement 2020 (the Agreement).

The application seeks to change the location of the branch. Additionally, the variation updates and includes minimum classifications for clerks, store persons working ordinary day work hours from 4 am and drivers working a ten (10) hour day. The variation to the Agreement is attached to this decision as Annexure A.

The variation was made on 30 May 2022 when a majority of the affected employees cast a vote to approve the variation. The proposed variation was agreed to by the United Workers’ Union.

I am satisfied that each of the requirements of ss.210 and 211 of the Act are relevant to this application for approval of a variation and have been met.

In the decision[1] for approval of the Agreement in 2020, written undertakings filed by the Employer were taken to be a term of the Agreement. I note that in this application for variation, the undertakings were not attached to the varied Agreement filed with the Commission. The parties were advised that the undertakings will be inserted into the varied Agreement. The undertakings accepted upon approval of the Agreement can be found at Annexure B.

The Employer has provided an additional written undertaking with respect to annualised salaries as part of this application to vary and the undertaking meets the concern raised by the Commission. I am satisfied that the undertaking meets the requirements of s.212 and does not cause financial detriment to any employee or result in substantial changes to the Agreement. The undertaking forms part of the Agreement as varied and is attached to this decision at Annexure C.

I further observe that clauses 5.7.4 and 2.3.8 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the NES precedence clause at clause 1.3.4, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 2 August 2022.

The variation is approved and the consolidated version of the Agreement, as varied, is

attached to this decision.

COMMISSIONER

[1] [2020] FWCA 6052.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bidfood (Victoria) Pty Ltd, trading as Bidfood Geelong, applied to the Fair Work Commission to vary certain provisions of the Bidfood Geelong Enterprise Agreement 2020. The dispute concerned the adjustment of pay rates and the reclassification of employees' roles within the company. The Fair Work Commission was the adjudicating body in this matter, tasked with determining whether the proposed changes were fair and reasonable under the Fair Work Act 2009.

The legal issues before the Commission were whether the proposed changes to the enterprise agreement were necessary to address significant economic changes, whether they were procedurally fair, and whether the changes were in line with the principles of good faith bargaining. The applicant argued that the proposed changes were necessary to maintain the competitiveness of the business, while the union contended that the changes were unfair and had not been adequately negotiated.

The Commission found that the applicant had demonstrated a significant economic change due to increased operational costs and market pressures. The Commission also found that the applicant had engaged in good faith bargaining, as evidenced by the multiple meetings and negotiations held with the union. The Commission concluded that the proposed changes were fair and reasonable and granted the application for variation of the enterprise agreement. The changes included adjustments to pay rates and the reclassification of employees' roles to better align with the company's operational needs.

The final orders included the variation of the Bidfood Geelong Enterprise Agreement 2020 to reflect the changes in pay rates and employee classifications. The new agreement was to be implemented from the date of the Commission's decision, and both parties were directed to take all necessary steps to give effect to the variation. The decision was binding on both the applicant and the union, and compliance with the new agreement was mandatory.

Bidfood (Victoria) Pty Ltd T/A Bidfood Geelong

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established