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

[2023] FWCA 1561

FAIR WORK COMMISSION

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

(AG2023/1175)

BIDFOOD CAIRNS – ENTERPRISE AGREEMENT 2023

Storage services
COMMISSIONER P RYAN	SYDNEY, 30 MAY 2023

Application for approval of the Bidfood Cairns – Enterprise Agreement 2023

enterprise agreement known as the Bidfood Cairns – Enterprise Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Single Interest Employers

The Agreement is expressed to cover two employers: the Applicant and United Imports & Exports Co Pty Ltd. Having regard to the materials filed, I am satisfied that the Applicant and United Imports & Exports Co Pty Ltd are related bodies corporate (see s.172(5)(b) of the FW Act).

Section 190 Undertakings

The Employer 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

Sections 186, 187, 188 and 190

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.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

National Employment Standards

I observe that clauses 2.3.2 and 2.6.2 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.3.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 6 June 2023. The nominal expiry date of the Agreement is 1 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission concerned the approval of the Bidfood Cairns Enterprise Agreement 2023. The parties involved were Burleigh Marr Distributions Pty Ltd, trading as Bidfood Cairns, and United Imports & Exports Co Pty Ltd, also trading as Bidfood Cairns. The agreement, which proposed a new set of terms and conditions for employees, was brought before the Commission to ensure its compliance with the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, particularly in terms of its coverage, negotiation process, and the provisions contained within it.

The legal issues the Court was required to address involved whether the enterprise agreement was genuinely negotiated, whether it complied with the statutory requirements set out in the Fair Work Act, and whether it provided appropriate safeguards for employee rights. Key concerns included the scope of the agreement, the process by which it was negotiated, and whether the terms and conditions proposed in the agreement were fair and reasonable. The Court also had to consider if the agreement appropriately balanced the interests of the employer and employees.

The Court found that the agreement had been genuinely negotiated and covered a broad range of terms and conditions that were fair and reasonable. It determined that the process of negotiation was compliant with the statutory requirements and that the agreement provided appropriate safeguards for employee rights. The Court noted that the agreement included provisions for minimum wage rates, overtime, penalty rates, leave entitlements, and other employment conditions that were consistent with the legislative framework. The Court concluded that the agreement was in the best interests of the employees and approved it under the Fair Work Act.

The Fair Work Commission granted approval for the Bidfood Cairns Enterprise Agreement 2023, confirming that it met all the statutory requirements for approval. The agreement was deemed to be genuinely negotiated, comprehensive in its coverage, and balanced in its terms and conditions. The approval ensures that the new agreement will now form the basis of employment terms and conditions for the employees covered by it.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established