Cater Plus Pty Ltd T/A Bidfood Adelaide

[2020] FWCA 1920

[2020] FWCA 1920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cater Plus Pty Ltd T/A Bidfood Adelaide
(AG2020/502)

BIDFOOD ADELAIDE ENTERPRISE AGREEMENT 2019

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 16 APRIL 2020

Application for approval of the Bidfood Adelaide Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Bidfood Adelaide Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cater Plus Pty Ltd T/A BidfoodAdelaide (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 March 2020.

[3] On 18 March 2020, I conducted a telephone conference and on 7 April 2020 I conducted a Hearing with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form on 7 April 2020. The undertaking deals with the following topics:

•  The Employer will not apply clauses 4.1.1(c)(i), 4.1.2(b)(i) or 4.1.4(c) of the Agreement but will observe the following in lieu:

“7.00 am until 7.00 pm Sunday to Friday and 6.00 am until 1.30 pm on a Saturday for Clerks and Telephone Sales Clerks. Provided that where a Clerks and Telephone Sales Clerks works in association with other classes of employees who work ordinary hours outside the spread prescribed by this clause, the hours during which ordinary hours may be worked are as prescribed by the ordinary hours applying to the majority of the employees in the workplace.”

•  Clause 2.2.7 will not apply but the following will apply in lieu:

“If an Employee fails to give the notice required on resignation or to work out the notice then the Employee authorises the Employer to deduct from any unpaid wages due to them an amount equivalent to notice period or the period of notice not worked.”

•  Clause 7.6.4 will not apply but the following will apply in lieu:

“Provided further that such protective clothing will remain the property of the Employer, and that the Employee will be liable for the cost of replacement of any article of protective clothing which is lost, destroyed or damaged through the negligence of the Employee.”

•  The last sentence of clause 7.8.6 is replaced with the following:

“For the assessment under this clause the facilitative provisions pursuant to the Storage Services and Wholesale Award 2010 will be taken to be incorporated.”

•  A minimum of 7.6 hours of work and/or pay on a day to part-time or casual employee will be provided, where that employee agrees to alter their spread of hours in accordance with clauses 4.1.2(e) or 4.1.4(d) of the Agreement.

[5] 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.

[6] 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. The signature on the form F18 statutory declaration provided by the United Workers’ Union was not properly witnessed. In accordance with rule 6 of the Fair Work Commission Rules 2013 (the Rules), and the Statement issued by the Fair Work Commission on 31 March 2020 relating to the COVID-19 response, I consider it appropriate to dispense with the Rules and accept the signed declaration. In accordance with s.201(2) of the Act I note that the Agreement covers the United Workers’ Union.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] 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.

[9] 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 October 2022.

COMMISSIONER

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