DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burleigh Marr Distributions Pty Ltd t/a Bidfood Hervey Bay; United Imports & Exports Co Pty Ltd t/a Bidfood Hervey Bay
(AG2021/4468)

BIDFOOD HERVEY BAY– ENTERPRISE AGREEMENT 2021

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 5 MAY 2021

Application for approval of the Bidfood Hervey Bay- Enterprise Agreement 2021.

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

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

[3] I am satisfied that the two entities trading as Bidfood Hervey Bay 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).

[4] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[5] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining identified Burleigh Marr Distributions Pty Ltd as the entity giving notice and did not expressly name United Imports & Exports Co Pty Ltd as an entity giving notice. The Notice did identify the Agreement by reference to “Bidfood Hervey Bay” (the trading name of United Imports & Exports Co Pty Ltd) and specified the classifications to be covered (which include roles performed by employees of United Imports & Exports Co Pty Ltd). The relevant employees were represented in bargaining by an employee organisation and are covered by a predecessor enterprise agreement. Further, all employees of both entities were handed a copy of the Notice. To the extent that there was non-compliance with the requirements of s.174 because the Notice did not identify United Imports & Exports Co Pty Ltd as an employer giving notice, in these particular circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[6] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[7] 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.

[8] 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.

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

[10] 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.

[11] 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.

[12] The Agreement was approved on 5 May 2021 and, in accordance with s.54, will operate from 12 May 2021. The nominal expiry date of the Agreement is 1 September 2022.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the parties involved in the proceedings were Burleigh Marr Distributions Pty Ltd trading as Bidfood Hervey Bay and United Imports & Exports Co Pty Ltd also trading as Bidfood Hervey Bay. The dispute pertained to the application for approval of the Bidfood Hervey Bay Enterprise Agreement 2021. The Commission was tasked with assessing the fairness and compliance of the agreement under the Fair Work Act 2009.

The central legal issues before the Commission involved determining whether the agreement met the procedural fairness requirements, ensuring it was free from any coercive or oppressive conduct, and verifying that it provided for minimum entitlements as stipulated by the Act. The Commission also needed to consider whether the agreement included appropriate dispute resolution mechanisms and whether it adhered to the good faith bargaining principles. Additionally, the Commission assessed whether the agreement provided adequate protections for employees and addressed any specific concerns raised by the parties.

The Fair Work Commission conducted a thorough examination of the enterprise agreement, focusing on the negotiation process, the terms and conditions outlined within the agreement, and the responses of the parties. The Commission found that the agreement was the result of genuine and voluntary bargaining, with no evidence of coercive or oppressive conduct. It was determined that the agreement provided for all minimum entitlements required by the Fair Work Act and included appropriate dispute resolution mechanisms. The Commission also noted that the agreement contained adequate protections for employees and addressed the specific concerns raised by the parties during the negotiation process. Consequently, the Commission approved the Bidfood Hervey Bay Enterprise Agreement 2021.

The final orders of the Commission included the approval of the Bidfood Hervey Bay Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The Commission also ordered that the parties comply with all provisions of the approved agreement and any relevant laws and regulations.

Burleigh Marr Distributions Pty Ltd t/a Bidfood Hervey Bay; United Imports & Exports Co Pty Ltd t/a Bidfood Hervey Bay

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established