[1] BFS Direct Pty Ltd trading as Bidfood Morwell (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Morwell - Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by either the Storage Services and Wholesale Award 2020 (Storage Award), the Road Transport and Distribution Award 2020 (Road Transport Award), the Clerks - Private Sector Award 2020 (Clerks Award), or the Commercial Sales Award 2020 (Commercial Sales Award).

Inconsistencies with the National Employment Standards (NES)

[3] The Commission raised the following issues with the Employer as to whether some aspects of the Agreement are inconsistent with the NES:

1. Clause 3.4.4 provides that on termination the employee authorises the Employer to deduct an amount equivalent to any overpayment of wages or allowances owed by an employee from the employee's termination monies. This provision does not appear to limit the source of monies which may be deducted and as such appears to permit the Employer to deduct an employee's entitlements under the NES (such as notice, accrued but unused annual leave or long service leave on termination), inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

2. Clause 6.1.6 provides that employees may be required to undergo absenteeism management plans, which may specify the types of evidence an employee may provide to substantiate personal leave and require employees to provide notice of absence by certain deadlines. This provision is stated to operate notwithstanding any evidence requirements of the Act and therefore appears to exclude the NES.

[4] I note that in accordance with the NES precedence term in clause 1.3.5 of the Agreement, the above clauses will be read and interpreted in conjunction with the NES.

[5] The Commission raised the following issues with the Employer which is relevant to whether employees are better off overall under the Agreement compared to the relevant Awards:

1. Clause 4.6 states that 'where the agreement provides for a minimum engagement, save and except for public holidays, and a portion of that time is not worked by the Employee, then the time not worked will be paid at the Employee's base rate of pay.' The Agreement provides minimum engagements for Saturdays and Sundays in clause 3.8.3. Issues may arise where part-time or casual employees work less than their minimum engagement on weekends, with few ordinary hours to compensate. All of the Awards provide for the minimum engagements on weekends to be paid at the penalty rate. I am satisfied for the purposes of s.193A(6) of the FW Act, based on submissions provided by the Employer, that it is not reasonably foreseeable that casual and part time employees will work for less than four hours on a weekend.

2. Clause 3.2.1(b) provides an annual salary for clerical employees, commercial sales employees and supervisors/managers that appears to be 7.35% - 16.11% above the relevant Awards. Clause 6.8.2 provides where an employee is paid an annual salary, certain provisions of the Agreement can be excluded for those employees, including wages, shift penalties, weekend penalty rates, allowances, overtime, annual leave loading and public holiday penalties. The rates of pay do not appear high enough to compensate for these exclusions.

[6] The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule 1. 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. The undertakings are taken to be a term of the Agreement.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2025. The nominal expiry date of the Agreement is 1 November 2028.

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