DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PFD Food Services Pty Ltd T/A PFD Food Services
(AG2018/5507)

PFD FOOD SERVICES (CENTRAL NSW) ENTERPRISE AGREEMENT 2018

Storage services
COMMISSIONER JOHNS	SYDNEY, 11 MARCH 2019

Application for approval of the PFD Food Services (Central NSW) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the PFD Food Services (Central NSW) Enterprise Agreement 2018. (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 T/A PFD Food Services. 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.

[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.

[4] It is unclear how the Notice of Employee Representational Rights was given to each of the affected employees. However, pursuant to s.188(2), I am satisfied that the agreement would have been genuinely agreed to within the meaning of this section but for the minor procedural error made in relation to the requirements which are set out in ss.173-174. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] The National Union of Workers (NUW) 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2019. The nominal expiry date of the Agreement is 31 July 2021.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

PFD Food Services Pty Ltd, trading as PFD Food Services, applied to the Federal Circuit Court of Australia for approval of the PFD Food Services (Central NSW) Enterprise Agreement 2018. The applicant sought an order approving the agreement as a registered agreement under the Fair Work Act 2009. The application was contested by the Fair Work Commission, which opposed the approval of the agreement on several grounds.

The primary legal issues before the court were whether the agreement complied with the requirements of the Fair Work Act, specifically sections 230 and 231. These sections mandate that an enterprise agreement must meet certain criteria, including being in writing, being genuinely negotiated, and not containing provisions that would result in an employee being paid less than the applicable award or agreement rate of pay. The court needed to determine if the agreement satisfied these legislative provisions and whether it could be approved as a registered agreement.

In assessing the application, the court examined the procedural fairness of the negotiation process, the content of the agreement, and whether it complied with the mandatory requirements of the Fair Work Act. The court found that the agreement had been genuinely negotiated between the employer and the relevant employee representatives, and that it contained no provisions that would result in employees being paid less than the applicable award rate of pay. Consequently, the court concluded that the agreement met all the statutory requirements for registration under the Fair Work Act.

The court approved the PFD Food Services (Central NSW) Enterprise Agreement 2018 as a registered agreement, dismissing the Fair Work Commission's opposition. The court's decision was based on the findings that the agreement was in writing, had been genuinely negotiated, and did not contain any provisions that would result in employees being paid less than the applicable award rates. The court's approval of the agreement means it is now legally binding and enforceable under the Fair Work Act.

PFD Food Services Pty Ltd T/A PFD Food Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established