Cater Plus Pty Ltd trading as John Lewis Foodservice Adelaide

Case •

[2025] FWCA 2869

•

4 SEPTEMBER 2025
[2025] FWCA 2869

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cater Plus Pty Ltd trading as John Lewis Foodservice Adelaide

(AG2025/2401)

BIDFOOD NORTH PLYMPTON – ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 SEPTEMBER 2025

Application for approval of the Bidfood North Plympton – Enterprise Agreement 2025

Introduction  

  1. Cater Plus Pty Ltd trading as John Lewis Foodservice Adelaide (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood North Plympton – Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. 

  1. The Agreement will apply to employees who are covered by either the Storage Services and Wholesale Award 2020 (Storage Award), Road Transport and Distribution Award 2020 (Road Transport Award), Clerks - Private Sector Award 2020 (Clerks Award) or Commercial Sales Award 2020 (Commercial Award).

National Employment Standards (NES)

  1. There are several clauses of the Agreement that may be inconsistent with the payment of NES entitlements on termination, including:

  • Clause 7.3.2 provides that where an employee terminates their employment with the Employer and fails to return any protective clothing or equipment which is the property of the Employer, the Employer may deduct from any termination monies due to that employee the cost of replacement of the protective clothing or equipment.
  • Clause 3.4.4 allows the Employer to deduct overpayments from an employee’s termination monies.

  1. Clause 5.2.5(a) provides that an employee must give the Employer notice of taking of personal/carer’s, compassionate or family and domestic violence leave as soon as practical (which may be a time after the leave has started) but it is expected that an employee seeking to take leave will provide at least one hour’s notice of their absence prior to the start of their shift. This may be inconsistent with the NES.

  2. 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. 

Better off Overall Test (BOOT) Issues  

  1. The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award: 

  1. Clause 3.2.1(b) of the Agreement provides an annual salary for clerical employees, commercial sales employees and supervisors/managers that appears to be 7.35% – 13.02% above the Award. Clause 7.9.2 provides where an employee is paid an annual salary, certain provisions of the Agreement can be excluded for those employees, including wages, shift penalties, weekend penalty rates, allowances, overtime, annual leave loading and public holiday penalties. The Agreement is silent on the safeguards for annualised wage arrangements for clerical employees under clause 18 of the Clerks Award.
  1. Clause 4.1.4(d) of the Agreement states that the casual loading shall not be paid on overtime or public holidays.
  1. Clause 4.1 of the Agreement provides a different entitlement for span of hours to compared to clause 13 of the Road Transport Award. Clauses 4.1.1(b), 4.1.2(d) and 4.1.4(b) provide for a maximum of 10 ordinary hours per day for full time, part time and casual employees. The Employer provided calculations showing that these employees will be better off overall under the Agreement compared to the Road Transport Award.

  1. Appendix 9 of the Agreement lists two employee ID numbers that are entitled to 1% of the total invoiced Bidfood product delivered by that employee less customer rebates in lieu of overtime and weekend penalties and allowances. It is not possible to determine whether these employees are better off overall under the Agreement. The Employer provided submissions that showed that these employees respectively earned $7,796.43 and $4,403.40 more in commission than they would have received in overtime payments for the months of June and July 2025.

    1. Clause 4.1 of the Agreement provides an increased span of hours for clerks from 6am to 8pm Monday to Sunday compared to the Clerks Award.
    1. Clause 28 of the Clerks Award provides that shiftworkers receive penalties of 200% for Saturdays, Sundays or public holidays that are not an ordinary working day. Clause 21.1(d) provides for overtime penalties to be paid on a rostered day off that is not substituted or banked. The Agreement does not appear to provide for overtime on a day that is not a working day or on an RDO.
    1. Clause 4.2.1 of the Agreement provides for overtime penalties but excludes any ‘employee employed as a sales representative’. Clause 19 of the Commercial Award provides that overtime is paid at 150%, Monday-Friday and 200% on Sunday.

Section 190 Undertakings 

  1. The Employer provided written submissions and undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule 1. 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  

  1. Subject to the undertakings referred to above and having regard to the submissions provided by the Employer, 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. 

Section 183 Bargaining Representatives  

  1. The United Workers’ Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. 

  1. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval 

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2025. The nominal expiry date of the Agreement is 1 June 2028.  

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE530217  PR791107>

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