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

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In this case, the applicants, Cold Seas Pty Ltd trading as Bidfood Canberra, and United Imports and Exports Company Pty Ltd trading as Bidfood Canberra, sought approval of the Bidfood Canberra - Enterprise Agreement 2021. The application was heard in the Fair Work Commission, a tribunal under the Fair Work Act 2009. The dispute centred on the validity and approval of the proposed enterprise agreement between the applicants and the employees, with objections raised by the Australian Council of Trade Unions.

The primary legal issues before the court were whether the enterprise agreement complied with the statutory requirements of the Fair Work Act, particularly in terms of the provisions for employee representation and the procedural fairness in the agreement's development. The court had to determine if the agreement met the standards for being deemed a "modern award" and if the process followed in its creation was fair and appropriate. The court also had to consider the objections raised by the unions regarding the agreement's provisions and its implications for employee rights.

The court examined the evidence and submissions from both parties and considered the statutory framework governing enterprise agreements. It found that the agreement did not sufficiently ensure employee representation and did not follow the required procedural fairness in its development. The court also noted the objections raised by the unions and considered their impact on the agreement's validity. Ultimately, the court decided that the application for approval of the enterprise agreement should be dismissed due to these deficiencies.

The Fair Work Commission ordered that the application for approval of the Bidfood Canberra - Enterprise Agreement 2021 be dismissed. The Commission directed the parties to engage in further negotiations to address the identified issues and to ensure compliance with the statutory requirements of the Fair Work Act. The Commission also noted the importance of procedural fairness and employee representation in the development of future enterprise agreements.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established