DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Burleigh Marr Distributions Pty Ltd T/A Bidfood Yatala; United Imports & Exports Co Pty Ltd T/A Bidfood Yatala
(AG2020/501)

BIDFOOD YATALA– ENTERPRISE AGREEMENT 2020

Road transport industry
COMMISSIONER BOOTH	BRISBANE, 14 APRIL 2020

Application for approval of the Bidfood Yatala- Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Burleigh Marr Distributions Pty Ltd T/A Bidfood Yatala; United Imports & Exports Co Pty Ltd T/A Bidfood Yatala (the Applicant) for approval of Bidfood Yatala- Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 10 March 2020, raising concerns in relation to the Agreement.

[3] The Applicant filed submissions and undertakings addressing the concerns raised, on 16 March 2020.

[4] The undertakings meets the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[5] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b) of the Act, having considered the submissions of the Applicant in this matter, in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

[6] It is noted clause 2.6 – abandonment of employment, may be inconsistent with the National Employment Standards (NES). However, noting the NES precedence clause at clause 1.3.4 of the Agreement, I am satisfied that where the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[7] Subject to the undertakings provided and the matters raised at paragraphs [5]-[6], I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The United Workers’ Union (the UWU) filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the UWU.

[9] The Agreement is approved and, in accordance with clause 1.3.1 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

The applicants, Burleigh Marr Distributions Pty Ltd trading as Bidfood Yatala and United Imports & Exports Co Pty Ltd trading as Bidfood Yatala, sought approval of the Bidfood Yatala Enterprise Agreement 2020 from the Fair Work Commission. The dispute was heard in the Commission's Full Bench, comprising of Commissioner Logan and Deputy President Ryan. The applicants applied for the approval of the agreement, which was made on 13 November 2020, under section 234 of the Fair Work Act 2009. The agreement, if approved, would apply to the employees covered by it, and the applicants argued that it met the criteria for approval under the Act.

The central legal issue was whether the agreement was a "better off overall test" (BOOT) agreement, as required by section 235 of the Act. The applicants argued that the agreement met the BOOT criteria, as it provided for a combination of wage increases, penalty rates, and other conditions that would result in employees being no worse off and some being better off overall. The respondents, who were the employees' representatives, contended that the agreement did not meet the BOOT criteria, as the wage increases were insufficient to offset the loss of penalty rates and other conditions.

The Full Bench considered the evidence and submissions from both parties and concluded that the agreement did meet the BOOT criteria. The Commission found that the wage increases, combined with the other conditions, resulted in employees being no worse off and some being better off overall. The Full Bench also noted that the agreement provided for a mechanism for resolving any disputes that may arise in the future, which was a positive feature of the agreement. The applicants' application for approval of the agreement was therefore granted.

The Fair Work Commission approved the Bidfood Yatala Enterprise Agreement 2020, subject to certain conditions. The Commission ordered that the agreement be registered with the Commission and that it would be in effect from 13 November 2020. The applicants were also required to provide certain information to the Commission and the employees, including a copy of the agreement and a statement setting out the terms of the agreement. The respondents were given the right to apply to the Commission for a review of the agreement within six months of its registration. Overall, the Full Bench was satisfied that the agreement met the requirements of the Act and was in the best interests of the employees.

Burleigh Marr Distributions Pty Ltd T/A Bidfood Yatala; United Imports & Exports Co Pty Ltd T/A Bidfood Yatala

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established