Cold Seas Pty Ltd t/a Bidfood Canberra; United Imports and Exports Company Pty Ltd t/a Bidfood Canberra

[2021] FWCA 3217

[2021] FWCA 3217

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
(AG2021/5085)

BIDFOOD CANBERRA – ENTERPRISE AGREEMENT 2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 3 JUNE 2021

Application for approval of the Bidfood Canberra - Enterprise Agreement 2021.

[1] The two entities trading as Bidfood Canberra have applied for approval of a single enterprise agreement known as the Bidfood Canberra - Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] I am satisfied that the two entities trading as Bidfood Canberra are single-interest employers within the meaning of s.172(5)(b) of the Act. A single declaration was filed on behalf of both employers. To the extent necessary, I consider this an appropriate case to dispense with compliance with Rule 24(1) and do so pursuant to Rule 6 of the Fair Work Commission Rules 2013 (Cth).

[4] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[5] Noting clause 1.3.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[8] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 3 June 2021 and, in accordance with s.54, will operate from 10 June 2021. The nominal expiry date of the Agreement is 1 April 2023.

DEPUTY PRESIDENT

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Annexure A