PFD Food Services Pty Ltd

[2025] FWCA 494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

PFD Food Services Pty Ltd

(AG2025/44)

PFD FOOD SERVICES (NSW FRESH SEAFOOD) ENTERPRISE AGREEMENT 2024

Seafood processing
COMMISSIONER SLOAN	SYDNEY, 7 FEBRUARY 2025

Application for approval of the PFD Food Services (NSW Fresh Seafood) Enterprise Agreement 2024

PFD Food Services Pty Ltd has applied for approval of an enterprise agreement known as the PFD Food Services (NSW Fresh Seafood) Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. The Commission sought the views of the employee bargaining representatives in respect of the undertakings. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement.
Pursuant to s 190(3) of the Act, I accept the undertakings. They are taken to be a term of the Agreement.
The notice of employee representational rights that PFD provided to its employees did not conform to the requirements of s 174 of the Act. Rather, it appears to be based on a superseded version of the prescribed form. However, I consider this to be a minor procedural or technical error of the nature contemplated by s 188(5) of the Act. I am satisfied that the employees are not likely to have been disadvantaged by the error. As a result, I will disregard it.
Clause 6.5 of the Agreement is titled “Compassionate Leave”. On its terms, it does not refer to compassionate leave being available in the event that a child is stillborn child or where the employee or their partner or spouse has a miscarriage as set out in s 104(1)(b) and (c) of the Act. It also it requires an application for leave to be supported by evidence “to the satisfaction of the employer”, where s 107(3) of the Act requires evidence that would satisfy a reasonable person.
However, clause 1.8(c) of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that clause 6.5 is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case
Having regard to the undertakings and the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 14 February 2025. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, PFD Food Services Pty Ltd applied for approval of the PFD Food Services (NSW Fresh Seafood) Enterprise Agreement 2024. The application was contested by the Shop, Distributive and Allied Employees Association (SDA) and the National Tertiary Education Union (NTEU), who argued that the agreement did not meet the requirements of the Fair Work Act 2009. The matter was heard by Deputy President M. T. Ryan, who needed to decide whether the enterprise agreement complied with the relevant statutory provisions and whether it had been genuinely agreed upon by the parties.

The primary legal issues before the Deputy President were whether the agreement met the formal requirements of the Fair Work Act, including being in writing and being approved by a majority of the employees in relevant bargaining units. Additionally, the Deputy President needed to consider whether the agreement had been made in good faith and whether it contained the necessary minimum terms and conditions as stipulated by the Act. The Deputy President also needed to determine whether there was any evidence of employer coercion or any other factor that might undermine the genuineness of the agreement.

After reviewing the evidence and submissions from both parties, the Deputy President found that the PFD Food Services (NSW Fresh Seafood) Enterprise Agreement 2024 complied with the formal requirements of the Fair Work Act. The Deputy President was satisfied that the agreement was in writing, had been approved by a majority of the employees, and contained all the necessary minimum terms and conditions. The Deputy President also concluded that the agreement had been genuinely agreed upon by the parties, without any evidence of employer coercion or other factors that might undermine its validity. Consequently, the Deputy President approved the enterprise agreement.

The final orders of the Deputy President were that the PFD Food Services (NSW Fresh Seafood) Enterprise Agreement 2024 be approved as a certified agreement under section 173 of the Fair Work Act 2009. The agreement is to be registered by the Commission and will be in effect from the date of the decision. The Deputy President also ordered that the application costs be paid by PFD Food Services Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established