Cold Seas Pty Ltd T/A Bidfood Canberra, United Imports and Exports Company Pty Ltd T/A Bidfood Canberra

[2023] FWCA 1207

[2023] FWCA 1207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cold Seas Pty Ltd T/A Bidfood Canberra, United Imports and Exports Company Pty Ltd T/A Bidfood Canberra

(AG2023/938)

BIDFOOD CANBERRA – ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 4 MAY 2023

Application for approval of the Bidfood Canberra – Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Bidfood Canberra – Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cold Seas Pty Ltd T/A Bidfood Canberra, United Imports and Exports Company Pty Ltd T/A Bidfood Canberra. The Agreement is a single enterprise agreement.

1. The vote notice provided to employees did not specify the place of the vote in accordance with s.180(3) of the Act. Considering that a high proportion of employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(3), and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. The Employer has 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.

1. 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.

1. The Transport Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 2.2.7 – Authorised Deduction by the Employer for any notice not worked;

·   Clause 2.4.6 – Where an Employee is not entitled to Redundancy Benefits; and

·   Clause 6.1.6 – Implementation of Absence Management Plan.

However, noting clause 1.3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 May 2023. The nominal expiry date of the Agreement is 1 April 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A