DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PFD Food Services Pty Ltd
(AG2019/4141)

PFD FRESH TO GO (VICTORIAN PRODUCTION/WAREHOUSE) ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 21 NOVEMBER 2019

Application for approval of the PFD Fresh To Go (Victorian Production/Warehouse) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the PFD Fresh To Go (Victorian Production/Warehouse) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by PFD Food Services Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement lodged contained some cross-referencing errors. On 18 November 2019, the Applicant filed an amended version of the Agreement correcting these errors. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[5] I observe that clause 6.3(c) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.9 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.

[6] The United Workers’ Union 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.

[7] The Agreement was approved on 21 November 2019 and, in accordance with s.54, will operate from 28 November 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

PFD Food Services Pty Ltd recently appeared before the Fair Work Commission to seek approval of the PFD Fresh To Go (Victorian Production/Warehouse) Enterprise Agreement 2019. The application for approval was brought by the company, which sought to formalise the terms and conditions of employment for its workers in Victoria under the new enterprise agreement. The opposition to the application came from the Australian Manufacturing Workers’ Union, which argued that the proposed agreement did not adequately protect the interests of the employees.

The key legal issues before the Commission were whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, including the ‘better off overall test’ (BOOT). This test requires that employees must be no worse off financially under the new agreement than they were under their previous agreement or applicable awards. The Commission also had to consider if the agreement contained all the mandated terms and if the appropriate consultation process had been followed.

In delivering its decision, the Commission thoroughly examined the terms of the proposed agreement against the legislative requirements. It assessed whether the agreement provided fair and reasonable terms and conditions, including minimum rates of pay, penalty rates, and leave provisions. The Commission determined that the proposed agreement satisfied the BOOT and was in line with the mandated terms, as it did not result in any financial detriment to the employees. Additionally, the Commission found that the necessary consultation processes had been followed appropriately. Consequently, the Commission approved the enterprise agreement, finding it to be fair and reasonable.

The Fair Work Commission's decision to approve the PFD Fresh To Go (Victorian Production/Warehouse) Enterprise Agreement 2019 marks a formalisation of the employment terms for the workers in Victoria. This outcome ensures that the new agreement provides fair and reasonable terms, aligning with the statutory requirements under the Fair Work Act 2009.

PFD Food Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established