Burleigh Marr Distributions Pty Ltd United Imports & Exports Co Pty Ltd Trading as Bidfood Classic Meats Townsville

[2024] FWCA 1809

[2024] FWCA 1809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Burleigh Marr Distributions Pty Ltd United Imports & Exports Co Pty Ltd Trading as Bidfood Classic Meats Townsville

(AG2024/1291)

BIDFOOD CLASSIC MEATS TOWNSVILLE – ENTERPRISE AGREEMENT 2024

Meat industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 16 MAY 2024

Application for approval of the Bidfood Classic Meats Townsville – Enterprise Agreement 2024

Introduction

1. Burleigh Marr Distributions Pty Ltd United Imports & Exports Co Pty Ltd Trading as Bidfood Classic Meats Townsville (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Classic Meats Townsville – Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Employer and the employees covered by the Agreement are covered by either the Meat Industry Award 2020 or the Commercial Sales Award 2020.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement was 28 February 2024.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The Agreement was made on 4 April 2024.

Annual salaries

1. Clause 3.2.1(b) of the Agreement provides an annual salary for clerical employees, commercial sales employees, butchers or supervisors/managers. Clause 6.8.2 provides where an employee is paid an annual salary, certain provisions of the Agreement can be excluded for those employees, including wages, weekend penalty rates, allowances, overtime, annual leave loading and public holiday penalties. Clause 1.6 of the Agreement provides for individual flexibility arrangements. However, clause 6.8.5 states ‘Subclauses 1.6.2, 1.6.3, 1.6.4 and 1.6.5 of this Agreement will apply to any agreement made under this clause provided that the better off overall test prescribed in the Individual Flexibility Term will use the relevant Award as the comparator in lieu of the Agreement.’ Clauses 1.6 and 6.8 when read together do not comply with the requirements of s.203 of the Act.

1. In response to concerns raised with the Employer that employees covered by clause 6.8 of the Agreement may not be better off overall, the Employer has provided undertakings that it will not apply clauses 3.2.1(b) or 6.8 of the Agreement.

NES precedence term in Clause 1.3.5 of the Agreement

1. Clause 1.2 of the Agreement provides a definition for ‘immediate family or household’ which appears to be more restrictive than the NES. Clause 6.1.6 of the Agreement provides that employees may be required to undergo absenteeism management plans, which amongst other things may specify the types of evidence an employee may provide to substantiate personal leave and require employees to provide notice of absence by deadlines. This provision is stated to operate notwithstanding any evidence requirements of the Act. Clause 2.2.7 provides that if the employee does not give the required notice, the Employer may deduct an amount from monies due to the employee. Clause 3.4.4 provides for the deduction from any amount required to be paid to an employee the amount of any overpayment of wages or allowances.

1. These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 1.3.5 of the Agreement, these clauses will be read and interpreted in conjunction with the NES and that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, 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.
Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2024. The nominal expiry date of the Agreement is 1 April 2027.

DEPUTY PRESIDENT

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