Burleigh Marr Distributions Pty Ltd and United Imports & Exports Co Pty Ltd Trading As Bidfood Colmslie

[2024] FWCA 3424

[2024] FWCA 3424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Burleigh Marr Distributions Pty Ltd and
United Imports & Exports Co Pty Ltd Trading As Bidfood Colmslie

(AG2024/2451)

BIDFOOD COLMSLIE– ENTERPRISE AGREEMENT 2024

Food wholesaling industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 30 SEPTEMBER 2024

Application for approval of the Bidfood Colmslie– Enterprise Agreement 2024

Introduction

1. Burleigh Marr Distributions Pty Ltd (ACN 009 966 465) and United Imports & Exports Co Pty Ltd (ACN 000 543 528) are related bodies corporate being wholly owned subsidiaries of Bidfood Australia Limited (ACN 000 228 231). Both companies employ the employees at Bidfood Colmslie and are referred to as the Employer in this decision. They are ‘single interest employers’ for the purposes of s.172(5A)(b) of the Fair Work Act 2009 (Cth) (the Act). The Employer has made an application for approval of an enterprise agreement known as the Bidfood Colmslie– Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Act. The Agreement is a single enterprise agreement.

1. The Agreement will apply to employees who are covered by either the Commercial Sales Award 2020, the Clerks – Private Sector Award 2020 (Clerks Award), the Road Transport and Distribution Award 2020 (Road Transport Award), or the Storage Services and Wholesale Award 2020 (Storage Award).

Clerks – Grade 2 Level 1

1. Based on the classification matching attached to the application, the rate of pay for a Grade 2 Level 1 clerical employee is below the Clerks Award and as such, these employees are not better off overall under the Agreement. In response to this issue, the Employer has provided an undertaking that the minimum paypoint for an employee engaged as a clerk is Grade 2 Level 3.

Casual employees

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

1. Employees are entitled to receive 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. Rates of pay are not high enough to compensate especially considering several less beneficial terms in the Agreement that would compound this issue such as span of hours, Sunday penalties, maximum daily hours for drivers and overtime.

1. The Employer provided a spreadsheet which showed the working hours of casual storepersons from 23 July 2024 to 5 August 2024 and said that these working hours were typical. The Employer submitted that the spreadsheet 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 11.54 am and finish their ordinary hours between 10.00 pm and 11.00 pm. The shift they work is from Sunday to Thursday and the ten hour day is used for casuals.  The rosters show that the shift worker casuals do not work on Sundays in isolation.

1. The Employer also submitted that there is one casual clerk who works in the warehouse office in conjunction with the storepersons. The Employer provided a spreadsheet which showed the working hours of this employee from 23 July 2024 to 5 August 2024 and that the employee works Monday to Friday from 6.00 am (which is within the allowable expanded spread of hours under the Clerks Award) and works under eight hours a day. 

1. The Employer also submitted that there are no casual drivers employed by the Employer and that no casual employee works on public holidays in isolation.

1. In addition to these submissions, the Employer has provided undertakings in relation to the payment of the casual loading of 25% for storepersons classified below grade 2 level 3 when those employees work overtime or on public holidays in specific circumstances.

1. I am satisfied that the patterns of work and types of employment described by the Employer in the information provided 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 and supervisors or 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 in Appendix 7. 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.

Sections 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 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 7 October 2024. The nominal expiry date of the Agreement is 1 July 2027.

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

<AE526227  PR779795>

2017] FWCFB 1664.