Burleigh Marr Distributions Pty Ltd T/A Bidfood Brisbane, Bidfood Gold Coast, Bidfood Cairns, Bidfood Mackay, Bidfood Sunshine Coast, Bidfood Townsville, Bidfood Toowoomba, Bidfood Logistics Brisbane and Bidfood...

[2017] FWCA 3792

[2017] FWCA 3792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burleigh Marr Distributions Pty Ltd T/A Bidfood Brisbane, Bidfood Gold Coast, Bidfood Cairns, Bidfood Mackay, Bidfood Sunshine Coast, Bidfood Townsville, Bidfood Toowoomba, Bidfood Logistics Brisbane and Bidfood Hervey Bay
(AG2017/1113)

BIDFOOD BRISBANE & REGIONAL SITES - ENTERPRISE AGREEMENT 2017

Storage services
COMMISSIONER JOHNS	SYDNEY, 31 JULY 2017

Application for approval of the Bidfood Brisbane & Regional Sites - Enterprise Agreement 2017.

[1] On 4 April 2017 Burleigh Marr Distributions Pty Ltd T/A Bidfood Brisbane, Bidfood Gold Coast, Bidfood Cairns, Bidfood Mackay, Bidfood Sunshine Coast, Bidfood Townsville, Bidfood Toowoomba, Bidfood, Bidfood Logistics Brisbane and Bidfood Hervey Bay (Applicant) made an application for approval of the Bidfood Brisbane & Regional Sites - Enterprise Agreement 2017 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Commission received written submissions outlining various concerns with the Agreement from an employee on 31 May 2017, 28 June 2017, 17 July 2017 and 25 July 2017. The Applicant provided a response to these submissions on 30 June 2017.

[4] The employee raised a concern about the entitlement to the additional week of annual leave provided to shift workers under the NES. This was identified as an issue after initial analysis of the agreement was performed by the Commission. This issue was raised with the Applicant and the Applicant has provided an undertaking which has satisfied the Commission’s concerns with respect to this issue.

[5] The employee also raised a concern relating to the lower Sunday penalties under the agreement when compared with both the Storage Services and Wholesale Award 2010 and the Road Transport and Distribution Award 2010. This was identified as an issue after initial analysis of the agreement was performed by the Commission. This issue was raised with the Applicant and the Applicant has provided undertakings, which has satisfied the Commission’s concerns with respect to this issue.

[6] The employee raised concerns surrounding the working of overtime prior to an employee’s rostered start time and the impact that this would have on an employee’s entitlement to a meal allowance under the Agreement. The Commission has considered employees’ entitlements to overtime and meal allowances under the Agreement and under both the Storage Services and Wholesale Award 2010 and the Road Transport and Distribution Award 2010. The Commission is satisfied that employees remain better off overall under the terms of the Agreement after performing this assessment in the context of assessing whether or not the Agreement passes the better off overall test. Thus, these concerns do not impede the approval of the Agreement.

[7] Finally, the employee alleged that they had made email enquiries to management requesting representation in negotiations during the bargaining period for the agreement. The Commission requested that the relevant email correspondence from the employee be provided to the Commission.

[8] In summary the relevant email correspondence from the employee to management was to the following effect:

● The employee indicated that a few of the employees felt disenfranchised about the Union movement and their negotiations of the Agreement;

● The employee believed negotiations were rather one sided; and

● The employee questioned what management thought of the idea of giving the non-union employees an avenue of having their say on the Agreement or at least being involved in the process, and asked whether anyone had ever posed this question to management before.

[9] In summary management responded to the employee’s email as follows:

● The manager indicated that he was unsure whether this question had been posed to management before but that he would follow it up at the next manager’s meeting.

[10] The Commission was not provided with any further relevant correspondence in relation to this concern of the employee. The Commission has considered the email correspondence provided by the employee and is not satisfied that anything in the correspondence can be considered as the employee appointing themselves or anyone else as a bargaining representative. Thus, the Commission does not believe that this concern can impede the approval of the agreement.

[11] The employee raised other concerns in their written submissions that were not relevant considerations for the purposes of deciding whether or not to approve the agreement. The employee was concerned that they had not been paid properly in the past and that they may be subject to ‘pay back’ and work place bullying from the employer for raising concerns about the agreement with the Commission. These concerns are not relevant to the Commission’s assessment of the requirements in ss 186, 187 and 188 when determining whether or not to approve an enterprise agreement.

[12] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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. In any case, the National Union of Workers and the Transport Workers’ Union of Australia have indicated their acceptance of the undertakings.

[13] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[14] The National Union of Workers and the Transport Workers’ Union of Australia, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), the Commission notes that the Agreement covers these organisations.

[15] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 7 August 2017. The nominal expiry date of the Agreement is 1 January 2019.

COMMISSIONER

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Annexure A