Burleigh Marr Distributions Pty Ltd t/a Bidfood Gold Coast; United Imports & Exports Co Pty Ltd t/a Bidfood Gold Coast

[2021] FWCA 5256

[2021] FWCA 5256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burleigh Marr Distributions Pty Ltd t/a Bidfood Gold Coast; United Imports & Exports Co Pty Ltd t/a Bidfood Gold Coast
(AG2021/6556)

BIDFOOD GOLD COAST– ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 27 AUGUST 2021

Application for approval of the Bidfood Gold Coast- Enterprise Agreement 2021.

[1] The two entities trading as Bidfood Gold Coast have applied for approval of a single enterprise agreement known as the Bidfood Gold Coast- Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] I am satisfied that the two entities trading as Bidfood Gold Coast are single-interest employers within the meaning of s.172(5)(b) of the Act. A single declaration was filed on behalf of both employers. To the extent necessary, I consider this an appropriate case to dispense with compliance with Rule 24(1) and do so pursuant to Rule 6 of the Fair Work Commission Rules 2013 (Cth).

[3] Since the application was made, the Commission raised concerns including about whether the pre-approval requirements were met, whether the Agreement contravenes s.55 of the Act, whether the Agreement contains the mandatory terms and whether the Agreement passes the better off overall test. Further information was provided in relation to these concerns.

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

[5] Noting clause 1.3.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 27 August 2021 and, in accordance with s.54, will operate from 3 September 2021. The nominal expiry date of the Agreement is 1 March 2023.

DEPUTY PRESIDENT

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Annexure A