Bidfood WA Pty Ltd T/A Bidfood Perth

[2024] FWCA 3331

[2024] FWCA 3331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Bidfood WA Pty Ltd T/A Bidfood Perth

(AG2024/2454)

BIDFOOD PERTH - ENTERPRISE AGREEMENT 2024

Storage services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 20 SEPTEMBER 2024

Application for approval of the Bidfood Perth – Enterprise Agreement 2024.

Introduction

1. Bidfood WA Pty Ltd Trading As Bidfood Perth (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Perth – Enterprise Agreement 2024 (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 (the Clerks Award), the Road Transport and Distribution Award 2020 (Road Transport Award), or the Storage Services and Wholesale Award 2020 (Storage Award).

Spread of Hours – Storage Award

1. Clause 4.1 of the Agreement provides that the spread of hours is 5am to 8pm (or 4am and 8pm for employees classified at Grade 1 Level 3 or above), Monday to Sunday. This is a different span of hours than clause 13 of the Storage Award which specifies that the span of hours is 7am to 5.30pm on Monday to Friday which can be moved up to one hour forward or one hour back by agreement between an employer and may include Saturday and Sunday by majority agreement. Storage Service employees working at times when they would otherwise be entitled to overtime penalties under the Storage  Award do not appear to be better off overall. In response to this issue, the Employer has provided an undertaking that the span of hours under the Agreement will be 6:00am until 5:30pm (or 5:00am until 6:30pm where the Employee is classified at Grade 1 Level 3 or above, or 4:00am until 8:00pm when the Employee is classified at Grade 1 Level 4 or above) Monday to Sunday for Storepersons.

Maximum Daily Hours - Road Transport Award

1. Clause 4.1.1(b) and Clause 4.1.2(c) of the Agreement provides for a maximum of 10 ordinary hours per day for full time and part time employees. The Road Transport Award provides that employees are entitled to overtime in excess of 8 hours per day under clause 13.5. Calculations prepared by the Commission show that the minimum pay point for a driver working a 10 hour ordinary day roster will need to be Grade 1 Level 3 in order to be better off over all under the Agreement compared to the Award. The Employer has provided an undertaking that the minimum paypoint for a driver working a 10 hour ordinary day roster will be Grade 1 Level 3.

Sunday penalty rates and overtime

1. Clause 3.8.2 of the Agreement provides that ordinary hours worked on a Sunday are paid a penalty of 170%. Clause 22.2 of the Storage Services Award and clause 23.1 of the Road Transport Award both provide a penalty of 200% for ordinary hours worked on a Sunday and clause 28 of the Clerks Award provides an overtime penalty of 200% for all hours worked on a Sunday.

1. Clause 4.1.4(d) of the Agreement states that the casual loading shall not be paid on overtime. 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.

1. In response to these issues, the Employer provided information which showed all of its casual employees, their position, start date, classification grade and level, and visa work limitations.  There are ten storepersons and two drivers. The Employer submitted that the information shows that:

   1. there are storepersons engaged as day workers and afternoon shift workers. 
   2. the storeperson day workers commence their shifts at 6.00 am and work between Monday to Friday, which is within the expanded spread of hours allowed pursuant to the Storage Award. 
   3. the storeperson afternoon shift workers commence their ordinary hours between 2.00 pm and 3.00 pm and finish their ordinary hours between 10.00 pm and 11.00 pm and the shift they work if from Sunday to Thursday.  The rosters show that the shift worker casuals do not work a Sunday in isolation.
   4. the drivers commence their ordinary hours at 5.00 am and work between Monday to Friday, which is within the expanded span of hours allowed pursuant to the Road Transport Award. 
   5. The ten hour day is not used for casuals.

1. The Employer provided rosters for the period from 23 July 2024 to 5 August 2024 which it submits shows a typical pattern of work.

1. That Employer also provided information which showed all of its part time employees, comprising four clerks and one storeperson. The Employer submitted that the information shows that:

1. The storeperson works seven and a half hours on Monday and Thursday between 7.30 am and 3.30 pm.

2. The clerks work Monday to Friday starting between 8.45 am and 9.15 am working a maximum of eight hours. An employee who worked four hours on Sunday 28 July 2024 was paid overtime.  The Sunday rate under the Agreement for a day worker clerk is double time which accords with the Clerks Award.

Public Holiday Casual Loading – Storage and Road Transport

1. Clause 4.1.4(d) of the Agreement states that the casual loading is not paid on public holidays. Clause 22.1(d) of the Storage Award, clause 22.8 of the Road Transport Award and clause 11.1 of the Clerks Award provide a casual loading on a cumulative basis. Storage, Road Transport and Clerks casual employees who work public holidays in isolation did not appear to be better off overall.

1. The Employer provided information in relation to the casual hours worked during the period from 16 April 2024 to 20 April 2024 which included the Anzac day public holiday on Thursday, 25 April 2024. This showed that employees do not work pubic holidays in isolation and that employees were better off overall during that period under the Agreement compared to the relevant award. 

Patterns or kinds of work

1. I am satisfied that the patterns or kinds of work and type of employment described by the Employer in the information provided about casual and part-time employees is reasonably foreseeable for the purpose of s. 193A(6) of the FW Act.

Annual salaries

1. Clause 3.2.1(b) of the Agreement provides for annual salary arrangements for clerical employees, sales representatives, supervisors and managers. Clause 7.8.2 of the Agreement provides that 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. This appears to be an attempt to have two individual flexibility terms in the Agreement which is inconsistent with s. 202 which provides for ‘a flexibility term’.

1. There is no reconciliation clause in the Agreement which ensures that employees under annual salary arrangements are better off overall.[1] Further, the Agreement is silent on the safeguards for annualised wage arrangements for clerical employees under clause 18 of the Clerks Award.

1. In response to these issues, the Employer provided an undertaking to the effect that it will not apply the annual salary arrangements in the Agreement to its employees.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached Annexure A. 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

The Agreement is approved and, in accordance with s.54 of the Act, will operate

DEPUTY PRESIDENT

[1] Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery

[Printed by authority of the Commonwealth Government Printer

<AE526137  PR779493>

2017] FWCFB 1664.