Pfd Food Services Pty Ltd T/A Pfd Foods

[2024] FWCA 794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pfd Food Services Pty Ltd T/A Pfd Foods

(AG2024/391)

PFD FOOD SERVICES PTY LTD (REGIONAL WA) ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT BEAUMONT	PERTH, 1 MARCH 2024

Application for approval of the PFD Food Services Pty Ltd (Regional WA) Enterprise Agreement 2023

Pfd Food Services Pty Ltd T/A Pfd Foods (the Applicant) has made an application for the approval of an enterprise agreement known as the PFD Food Services Pty Ltd (Regional WA) Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant 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.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

The nominal expiry date of the Agreement at clause 1.5 states that the Agreement shall expire on 30 May 2023. This is at a time prior to the Agreement having been made or approved by the Commission. Section 186(5)(b) of the Act requires that the Commission must be satisfied that the nominal expiry date of an agreement is not more than four years after the day on which the Commission approves the agreement. The reference to the phrase ‘after the day on which the Commission approves the agreement’ clearly indicates, in my view, that the nominal expiry date of an Agreement is a date that arises after approval of the enterprise agreement. The Applicant has provided an undertaking that the nominal expiry date is 30 May 2026, a date that is reflected in the ‘Summary of Changes’ document, an information sheet that the Applicant provided to relevant employees to summarise the changes that had been made to the predecessor agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

The Transport Workers' Union of Australia (TWU) (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 1 March 2024 and, in accordance with s 54, will operate from 8 March 2024. The nominal expiry date of the Agreement is 30 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

Pfd Food Services Pty Ltd, trading as Pfd Foods, applied to the Fair Work Commission for the approval of the PFD Food Services Pty Ltd (Regional WA) Enterprise Agreement 2023. The application was brought under the Fair Work Act 2009, seeking to have the agreement recognised as a registered enterprise agreement. The applicant argued that the agreement was fairly and properly negotiated and met the requirements for approval.

The primary legal issues before the Commission were whether the agreement was made in good faith, whether it was fairly and properly negotiated, and whether it complied with the statutory provisions of the Fair Work Act. Pfd Foods had to demonstrate that the agreement was negotiated with the relevant employees' representatives, and that it contained the required minimum terms and conditions as specified in the Act.

The Commission found that the agreement was indeed fairly and properly negotiated and met all statutory requirements for approval. The employer provided evidence of the negotiation process, including communication records and meeting minutes, which demonstrated good faith and proper negotiation. The agreement contained all the required minimum terms and conditions, and there were no provisions that were contrary to public policy or the spirit of the Act. The Commission was satisfied that the agreement was made in compliance with the relevant legislative provisions.

As a result, the Commission approved the PFD Food Services Pty Ltd (Regional WA) Enterprise Agreement 2023 as a registered enterprise agreement. The decision was made on the basis that the agreement was negotiated in good faith, was fairly and properly negotiated, and met all statutory requirements for registration.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established