DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burleigh Marr Distributions Pty Ltd T/A Bidfood Cairns; United Imports & Exports Co Pty Ltd T/A Bidfood Cairns
(AG2021/4678)

BIDFOOD CAIRNS - ENTERPRISE AGREEMENT 2021

Road transport industry
COMMISSIONER LEE	MELBOURNE, 12 MAY 2021

Application for approval of the Bidfood Cairns - Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Bidfood Cairns - Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burleigh Marr Distributions Pty Ltd T/A Bidfood Cairns; United Imports & Exports Co Pty Ltd T/A Bidfood Cairns. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Transport Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

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

• Clause 5.7.5 - Public Holidays.

• Clause 2.3.6 – Redundancy.

However, noting clause 1.3.4 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2021. The nominal expiry date of the Agreement is 1 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Burleigh Marr Distributions Pty Ltd trading as Bidfood Cairns and United Imports & Exports Co Pty Ltd trading as Bidfood Cairns, sought approval for the Bidfood Cairns - Enterprise Agreement 2021. The Fair Work Commission was asked to determine whether the agreement met the requirements of the Fair Work Act 2009. The nature of the dispute centred on whether the agreement complied with the legislative framework, particularly concerning procedural fairness and coverage of employees.

The central legal issues the court needed to address were whether the agreement was genuinely negotiated and if it adhered to the mandatory provisions of the Fair Work Act. Additionally, the court examined whether the agreement was certified by the Australian Building and Construction Commission, as required by the act. The applicants argued that the agreement was negotiated in good faith and met all legal requirements, while no objections were raised by any party, including the employees.

The commission found that the agreement was indeed negotiated in good faith and met all statutory requirements for approval. It concluded that the agreement was fairly and genuinely negotiated, and all procedural fairness requirements were met. The commission also confirmed that the agreement was certified by the Australian Building and Construction Commission as required. Therefore, the application for approval was successful.

The Fair Work Commission approved the Bidfood Cairns - Enterprise Agreement 2021. The agreement was deemed to comply with the Fair Work Act and was therefore approved, effective from the date of the decision.

Burleigh Marr Distributions Pty Ltd T/A Bidfood Cairns; United Imports & Exports Co Pty Ltd T/A Bidfood Cairns

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established