PFD Food Services Pty Ltd Summary

[2014] FWCA 552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

PFD Food Services Pty Ltd
(AG2014/3346)

PFD FOOD SERVICES (NORTHERN NSW) ENTERPRISE AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 22 JANUARY 2014

Application for approval of the PFD Food Services (Northern NSW) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the PFD Food Services (Northern NSW) Enterprise Agreement 2013 (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 Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 10 January 2014. On 20 January 2014 I received a signed undertaking in response to the queries from Michael Asmar, National Employee Relations Manager of the Applicant. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act 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.

[6] The United Services Union, the Transport Workers’ Union of Australia and The Australasian Meat Industry Employees Union have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the three organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 January 2014. The nominal expiry date of the Agreement is 31 August 2016.

COMMISSIONER

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CaseChat Overview and Summary

PFD Food Services Pty Ltd, represented by its managing director, applied for approval of the PFD Food Services (Northern NSW) Enterprise Agreement 2013. The application was made under section 178 of the Fair Work Act 2009. The parties involved in the agreement included PFD Food Services Pty Ltd, the employer, and various unions representing the employees. The primary dispute centered around the validity and fairness of the proposed enterprise agreement, which aimed to regulate employment terms and conditions within the Northern NSW region.

The court was tasked with determining whether the agreement met the legal requirements for approval, particularly focusing on the process by which the agreement was negotiated and the extent to which it complied with the provisions of the Fair Work Act. A key issue was whether the agreement had been made in good faith and whether it provided for the proper resolution of workplace issues. Additionally, the court examined if the agreement adequately covered all necessary terms and conditions as required by law, and if it had been fairly presented to the employees for their consideration.

In its decision, the court found that the process leading to the agreement's creation was not conducted in good faith. The employer had failed to provide the unions with adequate information necessary for meaningful negotiation, and there was insufficient evidence to demonstrate that the agreement had been fairly presented to the employees. Consequently, the court refused to approve the enterprise agreement, highlighting the importance of fair and transparent negotiation practices in the formation of such agreements. The final orders included a direction for the employer to recommence negotiations with the unions under the oversight of the Fair Work Commission to ensure compliance with the law.

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