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

[2021] FWCA 2320

[2021] FWCA 2320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burleigh Marr Distributions Pty Ltd t/a Bidfood Townsville; United Imports & Exports Co Pty Ltd t/a Bidfood Townsville
(AG2021/4267)

BIDFOOD TOWNSVILLE– ENTERPRISE AGREEMENT 2021

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 28 APRIL 2021

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

[1] The two entities trading as Bidfood Townsville have applied for approval of a single enterprise agreement known as the Bidfood Townsville- 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 Townsville 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 Townsville” (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. All employees of United Imports & Exports Co Pty Ltd covered by the Agreement cast a valid vote. 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) (the Regulations) 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 28 April 2021 and, in accordance with s.54, will operate from 5 May 2021. The nominal expiry date of the Agreement is 1 September 2022.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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