Kiora Investments Pty Ltd Trading As Bidfood Bunbury Summary

[2024] FWCA 3338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Kiora Investments Pty Ltd Trading As Bidfood Bunbury

(AG2024/2412)

BIDFOOD BUNBURY – ENTERPRISE AGREEMENT 2024

Food wholesaling industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 23 SEPTEMBER 2024

Application for approval of the Bidfood Bunbury – Enterprise Agreement 2024

Introduction

Kiora Investments Pty Ltd Trading As Bidfood Bunbury (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Bunbury – Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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

Spread of Hours – Storage Award and Road Transport Award

Clause 4.1 of the Agreement states that the spread of hours is 6am to 6.30pm (or 5am to 7.30pm for employees classified at Grade 2 Level 2 or above), Monday to Sunday for storepersons. This is a different span of hours than clause 13 of the Storage Award which specifies that the span of hours is 7am to 5.30pm on Monday to Friday which can be moved up to one hour forward or one hour back by agreement and may include Saturday and Sunday by majority agreement. The rates of pay for Grade 2 Level 2 storage employees, working at times when they would otherwise be entitled to overtime penalties do not appear to compensate for the extended span of hours.

Clause 4.1 of the Agreement states that the spread of hours for drivers is 4.30am to 7.30pm (or 3.30am to 8.30pm for employees classified at Grade 2 Level 2 or above) Monday to Sunday. This appears to be a different span of hours than clause 13 of the Road Transport Award which specifies that the span of hours is 5.30am to 6.30pm on Monday to Friday for employees, which can be altered by one hour at each end by agreement between an employee/employees and employer and may include Saturday and Sunday by majority agreement. The rates of pay for Grade 2 Level 2 drivers working at times when they would otherwise be entitled to overtime penalties do not appear to compensate for the extended span of hours.

In response to these issues, the Employer has provided an undertaking that the minimum paypoint for clauses 4.1.1(c)(i) and (ii), 4.1.2(e)(i) and (ii) and 4.1.4(d)(i) and (ii) will be Grade 2 Level 3.

The Employer also provided ‘clock in and clock out’ times for the drivers (identified by employee code) at Bidfood Bunbury for the week ending 2 September 2024 which it submits shows that the nine divers work Monday to Friday only, commence between 5.00 am and 7.35 am, and finish between midday and 4.37 pm. The Employer submitted that the data shows that all drivers are rostered to work within the expanded spread of hours for day workers which is allowed under the Road Transport Award. No driver works until 7.30 pm. I am satisfied that the patterns of work for drivers described by the Employer in the information provided is reasonably foreseeable for the purpose of s. 193A(6) of the FW Act.

Maximum Daily Hours - Road Transport

Clause 4.1.1(b), Clause 4.1.2(c) and 4.1.4(d) of the Agreement provides for a maximum of 10 ordinary hours per day for full time and part time employees. The Road Transport Award provides that employees are entitled to overtime in excess of 8 hours per day under clause 13.5. The rates of pay for drivers do not appear to be high enough to compensate for this reduction. In response to this issue, the Employer has provided an undertaking that the minimum paypoint for a driver working a 10 hour ordinary day roster will be Grade 2 Level 3.

Annual salaries

Clause 3.2.1(b) of the Agreement provides for annual salary arrangements for clerical employees, sales employees and supervisors or managers. Clause 7.8.2 of the Agreement provides that 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. This appears to be an attempt to have two individual flexibility terms in the Agreement which is inconsistent with s.202 which provides for ‘a flexibility term’.

There is no reconciliation clause in the Agreement which ensures that employees under annual salary arrangements are better off overall.[1] Further, the Agreement is silent on the safeguards for annualised wage arrangements for clerical employees under clause 18 of the Clerks Award.

In response to these issues, the Employer provided an undertaking to the effect that it will not apply the annual salary arrangements in the Agreement to its employees.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Appendix 4. 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

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.

Section 183 Bargaining Representatives

The Shop, Distributive and Allied Employees’ Association (SDA) 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 SDA.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 September 2024. The nominal expiry date of the Agreement is 1 January 2027.

DEPUTY PRESIDENT

[1] Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery

[Printed by authority of the Commonwealth Government Printer

2017] FWCFB 1664.

Kiora Investments Pty Ltd, trading as Bidfood Bunbury, applied for the approval of the Bidfood Bunbury – Enterprise Agreement 2024, before the Fair Work Commission. The dispute centred around the terms of the proposed agreement which was to govern the employment conditions of Bidfood Bunbury’s workers. The Commission was tasked with ensuring that the agreement complied with the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement met the criteria for being a protected action ballot under the Act, and if the agreement's terms were fair and reasonable. The Commission also had to consider if the agreement complied with the procedural requirements for approval, such as whether the agreement was properly certified by the relevant union and whether the appropriate notices were given to the employees. Additionally, the Commission examined whether the agreement was made in good faith and without coercion.

The Fair Work Commission found that the agreement was made in accordance with the Act and was fair and reasonable. The Commission confirmed that the agreement complied with all necessary procedural requirements and that it was made in good faith. The Commission approved the agreement, highlighting the balanced approach taken by the parties in negotiating the terms of the agreement. The agreement was thus approved, effective from the date of the Commission’s decision.

Kiora Investments Pty Ltd Trading As Bidfood Bunbury

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established