PFD Food Services Pty Ltd

[2021] FWCA 2173

[2021] FWCA 2173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PFD Food Services Pty Ltd
(AG2021/4591)

PFD FRESH TO GO (SA PRODUCTION/WAREHOUSE) ENTERPRISE AGREEMENT 2020

Food, beverages and tobacco manufacturing industry
COMMISSIONER PLATT	ADELAIDE, 21 APRIL 2021

Application for approval of the PFD Fresh To Go (SA Production/Warehouse) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the PFD Fresh To Go (SA Production/Warehouse) Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by PFD Food Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 April 2021.

[3] On 20 April 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 20 April 2021. The undertaking deals with the following topics:

•  All regular casual employees who have been employed for a period of 6 months will have the right to request to have their contract of employment converted into a full-time or part-time position.

•  In respect of Level 4 employees on an annualised salary, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery 1so as to ensure the better off overall test is met.

•  Full-time employees who are required to work on a public holiday will be paid for a minimum of 4 hours.

•  All employees who complete work on a Sunday must be paid for a minimum of 3 hours.

•  Employees who work shiftwork will be paid the relevant overtime penalty rate on top of their shift allowance, rather than as a substitution for it.

•  Annual leave loading shall be paid to eligible employees at the rate of the employee’s regular shift allowance, weekend penalties, or at a rate of 17.5% (whichever is higher).

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[1] There are three NES issues that require comment.

[2] Clause 6.2(e) of the Agreement places greater notification obligations on an employee who takes carer’s leave than is required by the NES at s.107(2)(a) of the Act. Clause 1.7(a) of the Agreement is a NES precedence clause and provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, the notification obligations on an employee who takes carer’s leave will be consistent with s.107(2)(a) of the Act.

[3] In addition, clause 3.7(b) provides for withholding of wages due to an employee when they terminate without providing the required notice. As a result of the NES precedence clause, clause 3.7(b) will not preclude an employee from receiving payment of entitlements on termination that are guaranteed by the NES.

[4] Finally, clause 6.7(f) of the Agreement states that the Company and a majority of employees in the relevant location or section of the Company may agree upon an alternative day to be taken as a public holiday in lieu of any of the prescribed days. This is inconsistent with s.115(3) of the Act. As a result of the NES precedence clause, public holidays will only be able to be substituted by agreement between the employer and an individual employee.

[5] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

 1   [2017] FWCFB 1664

Printed by authority of the Commonwealth Government Printer

<AE511144  PR728804>