Bon Food Pty Ltd

[2013] FWCA 2343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bon Food Pty Ltd
(AG2013/5840)

BON FOOD PTY LTD AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2013-2016

Storage services
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 17 APRIL 2013

Application for approval of the Bon Food Pty Ltd and National Union of Workers Enterprise Agreement 2013-2016.

[1] An application has been made for the approval of an enterprise agreement known as the Bon Food Pty Ltd and National Union of Workers Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] It is noted that clause 31.13 of the Agreement provides where there is any inconsistency between the National Employment Standards and the Agreement, the provision more beneficial to employees prevails. It would seem that this will ensure that the payment of annual leave upon termination will include leave loading (see s.90(2) of the Act) and that payment in respect of public holidays will be in accordance with the Act (see ss.114-116).

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

[4] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 April 2013. The nominal expiry date of the Agreement is 1 January 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bon Food Pty Ltd, sought approval of an enterprise agreement with the National Union of Workers. The application was heard by the Fair Work Commission (FWC), Australia's workplace relations tribunal. The applicant argued that the proposed agreement was in the best interests of the employees and met the FWC's criteria for approval. The union supported the application, while an objector raised concerns about specific clauses in the agreement.

The legal issues before the FWC were whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement provided for the employees' pay and conditions of employment in a fair and reasonable manner, and if it met the "better off overall test" (BOOT) – that is, whether the employees would be better off under the proposed agreement than under the applicable award. The FWC also needed to assess if the agreement contained any unfair provisions that would render it invalid.

In reaching its decision, the FWC considered the submissions from all parties and conducted a thorough analysis of the proposed agreement. The FWC found that the agreement provided for fair and reasonable pay and conditions of employment for the employees, and met the BOOT. The FWC also found that the agreement did not contain any unfair provisions. Based on this analysis, the FWC approved the proposed enterprise agreement. The objector's concerns were addressed and resolved to the satisfaction of the FWC.

The FWC's final order was to approve the Bon Food Pty Ltd and National Union of Workers Enterprise Agreement 2013-2016. The agreement now serves as the basis for the employees' pay and conditions of employment, and will be in effect until its expiration or until a new agreement is approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established