Carzen Pty Limited T/A Bidfood Dandenong South, Clayton Cold Stores Pty Ltd T/A Bidfood Dandenong South

[2025] FWCA 170

[2025] FWCA 170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Carzen Pty Limited T/A Bidfood Dandenong South, Clayton Cold Stores Pty Ltd T/A Bidfood Dandenong South

(AG2024/4459)

BIDFOOD DANDENONG SOUTH– ENTERPRISE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER CONNOLLY	MELBOURNE, 16 JANUARY 2025

Application for approval of the Bidfood Dandenong South – Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Bidfood Dandenong South – Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Carzen Pty Limited T/A Bidfood Dandenong South, Clayton Cold Stores Pty Ltd T/A Bidfood Dandenong South (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 2 December 2024.

1. The notification time for the Agreement under s.173(2) was 28 February 2024 and the Agreement was made on 29 October 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 9 December 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 13 November 2024.

1. There are three National Employment Standards (NES) issues that require comment:

·   Abandonment of employment (notice): Clause 2.6.2 of the agreement states that an employee will be deemed to have abandoned their employment if they have failed to attend for 3 consecutive rostered shifts. It is unclear whether termination is intended to take place, and if so, whether they would be entitled to payment of notice of termination in accordance with ss. 117–123 of the Act.

·   Public holidays: Clause 5.7.5 provides that the employer may unilaterally substitute easter public holidays for permanent employees working Sunday to Thursday. This appears to be a requirement to work on public holidays inconsistent with s.114 of the Act. 

·   Personal/carer’s leave – notice and evidence requirements: Clause 7.1.6 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 notice or evidence requirements of the Act and, therefore, appears to attempt to exclude the NES.

1. Clause 1.3.4 of the Agreement acts as an effective NES precedence clause, in that it states that “Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.” As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, on 12 December 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “United Workers’ Union”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 August 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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