Burleigh Marr Distributions Pty Ltd T/A Bidfood Sunshine Coast, United Imports & Exports Co Pty Ltd T/A Bidfood Mackay

[2022] FWCA 3086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Burleigh Marr Distributions Pty Ltd T/A Bidfood Sunshine Coast, United Imports & Exports Co Pty Ltd T/A Bidfood Mackay

(AG2022/2234)

Bidfood Mackay – Enterprise Agreement 2021

Storage services
COMMISSIONER P RYAN	SYDNEY, 6 SEPTEMBER 2022

Application for variation of the Bidfood Mackay – Enterprise Agreement 2021

Burleigh Marr Distributions Pty Ltd (Applicant) has made an application for a variation of the Bidfood Mackay – Enterprise Agreement 2021 (Agreement) pursuant to s.210 of the Fair Work Act 2009 (FW Act).

The application seeks to clause 3.2.2 of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

Section 212 Undertakings

The Applicant provided written undertakings. A copy of the undertakings is attached in Annexure B. 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 211 and 212

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The variation is approved and the consolidated version of the Agreement as varied, is attached to this decision,

Operative Date

In accordance with s.216 of the Act, the variation operates from 6 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Burleigh Marr Distributions Pty Ltd trading as Bidfood Sunshine Coast, and United Imports & Exports Co Pty Ltd trading as Bidfood Mackay, filed an application in the Fair Work Commission seeking to vary the Bidfood Mackay – Enterprise Agreement 2021. The primary issue at hand was the need to alter certain provisions of the agreement due to unforeseen circumstances that had arisen since its execution. This included changes in economic conditions, operational challenges, and workforce adjustments that were not contemplated at the time of the agreement's creation.

The court was tasked with determining whether the applicants had demonstrated sufficient grounds for modifying the existing agreement. This involved examining the nature of the changes sought, the impact of the changes on both the employees and the businesses, and whether the application met the legal standards for altering an enterprise agreement under the Fair Work Act 2009. The court considered the necessity and fairness of the proposed variations, ensuring that any changes would not undermine the rights and protections afforded to employees under the Fair Work Act.

In its reasoning, the court found that the applicants had adequately demonstrated the need for the variations due to the significant and unforeseen changes in the operational environment. The court considered the evidence provided by the applicants, which highlighted the impact of these changes on their ability to maintain business operations and meet financial obligations. The court concluded that the variations were necessary to ensure the continued viability of the businesses and the protection of the employees' interests. As such, the court granted the application, allowing for the specific changes to be incorporated into the Bidfood Mackay – Enterprise Agreement 2021. The court's decision was aimed at balancing the needs of both the employers and the employees, ensuring that the variations were fair and reasonable under the circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established