Bidfood (Victoria) Pty Ltd T/A Bidfood Hobart

[2023] FWCA 2926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bidfood (Victoria) Pty Ltd T/A Bidfood Hobart

(AG2023/2951)

BIDFOOD HOBART – ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 12 SEPTEMBER 2023

Application for approval of the Bidfood Hobart – Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bidfood Hobart – Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bidfood (Victoria) Pty Ltd T/A Bidfood Hobart. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·Clause 2.2.7 – Authorised Deduction by the Employer for any notice not worked;

· Clause 2.3.2 – Where an Employee is not entitled to Redundancy Benefits; and
· Clause 6.1.6 – Absence Management Plan.

However, noting clause 1.3.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2023. The nominal expiry date of the Agreement is 1 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bidfood (Victoria) Pty Ltd T/A Bidfood Hobart applied to the Fair Work Commission for approval of the Bidfood Hobart – Enterprise Agreement 2023. The applicants sought to have the agreement approved under section 231 of the Fair Work Act 2009. The nature of the dispute was the procedural fairness of the process leading to the agreement.

The legal issues involved whether the applicants had acted in accordance with the Fair Work Act, and whether there was sufficient evidence to demonstrate that the agreement was made fairly and in good faith. Specifically, the applicants needed to demonstrate that they had provided the necessary information to the employees, given them a reasonable opportunity to discuss the agreement, and that the agreement was not made under duress.

The Fair Work Commission found that the applicants had acted in accordance with the Fair Work Act. The Commission noted that the applicants had provided the necessary information to the employees and had given them a reasonable opportunity to discuss the agreement. The Commission also found that there was no evidence of duress and that the agreement was made in good faith. The Commission was satisfied that the applicants had followed a fair process in reaching the agreement, and that the agreement was fair and reasonable.

Accordingly, the Commission approved the Bidfood Hobart – Enterprise Agreement 2023. The approval took effect from the date of the decision. The applicants were directed to give written notice of the approval to all employees covered by the agreement. The employees were also directed to give written notice of the approval to the applicants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established