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

Printed by authority of the Commonwealth Government Printer

The case involved Cater Plus Pty Ltd trading as Bidfood Adelaide, an applicant, who sought the court's approval of the Bidfood Adelaide Enterprise Agreement 2019. The application was heard in the Fair Work Commission, an Australian industrial relations tribunal. The nature of the dispute was centred around the procedural fairness and the compliance of the proposed agreement with the relevant industrial and legislative requirements.

The legal issues before the Commission were whether the applicant had followed the necessary procedures to consult with the employees as required by the Fair Work Act 2009, and whether the proposed agreement was consistent with the relevant provisions of the Act. Additionally, the Commission needed to determine whether the agreement was in the best interests of the employees.

The Fair Work Commission found that the applicant had not adequately consulted with the employees prior to the agreement. Despite this, the Commission noted that the deficiencies in the consultation process were not significant enough to invalidate the agreement. The Commission also found that the proposed agreement met the statutory requirements and was in the best interests of the employees. Consequently, the Commission approved the Bidfood Adelaide Enterprise Agreement 2019.

The Fair Work Commission granted the application and approved the agreement. The decision underscored the importance of procedural fairness and compliance with legislative requirements in the context of enterprise agreements. The approval of the agreement was contingent upon the applicant remedying the procedural shortcomings by engaging in further consultation with the employees.

Cater Plus Pty Ltd T/A Bidfood Adelaide

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established