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[22]
austlii:cth/FWCA/2025/3803
General information, not legal advice.
FWCA
2025-11-12
Original judgment source is linked above.
s.185 - Enterprise agreement
Application for approval of the Bidfood Hervey Bay - Enterprise Agreement 2025.
[1] Burleigh Marr Distributions Pty Ltd and United Imports & Exports Co Pty Ltd trading as Bidfood Hervey Bay (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Hervey Bay- 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 explicitly excludes any applicable modern Awards under clause 1.3.3. The following Awards would otherwise apply to employees under the Agreement: 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) and the Commercial Sales Award 2020 (Commercial Sales Award).
[3] The Agreement covers two employers that appeared to be related entities. The Form 17B appears to have been lodged on behalf of all employers, which appears to be inconsistent with r.32(3) of the Fair Work Commission Rules 2024 which provides that each employer that is covered by the agreement must lodge a declaration by the employer, in support of the application, with the Commission within 14 days after the day on which the agreement is made. Further, there is only one NERR lodged with the application.
[4] The Employer provided submissions that the two employers are related bodies corporate being wholly owned subsidiaries of Bidfood Australia Limited and both companies employ the employees at Bidfood Hervey Bay. Accordingly, the Employer submits that they are a single interest employer for the purpose of s.172(5)(b) of the Act. Based on these submissions I am satisfied that it is appropriate to dispense with the requirement in r.32(3) in the circumstances.
[5] Clause 3.4.4 of the Agreement provides that the Employer may deduct from any amount required up to a maximum of 10% of an employee's full rate of pay for a week for the amount of any overpayment. This may not constitute a permitted deduction in accordance with s.324 of the Act. As such a deduction made pursuant to this term is likely to require the authorisation of the relevant employee to comply with s.324.[1]
Inconsistencies with the National Employment Standards (NES)
[6] The Commission raised the following issues with the Employer as to whether some aspects of the Agreement are inconsistent with the NES:
Clause 5.2.5(a) of the Agreement provides that an employee must give the Employer notice of taking of leave as soon as practicable (which may be a time after the leave has started but at least two (2) hour notice of their absence prior to the start of their shift). This appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act.
Clause 7.1.6 of the Agreement provides that employees may be required to undergo absenteeism management plans, which may specify the types of evidence required 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.
Clause 2.2 of the Agreement provides for notice periods including payment in lieu of notice. Subclauses 2.2.3 and 2.2.4 appears to be inconsistent with s.117 of the Act as they may result in employees not receiving their full entitlement.
Clause 2.2.8 of the Agreement provides that if an Employee fails to give the notice required on resignation or to work out the notice then the Employer may deduct from any monies due on termination under this Agreement, or the NES the amount equivalent to the notice period or the period of notice not worked. This raises the issue of deductions from NES entitlements.
Clause 2.3.2 of the Agreement provides for circumstances where employees are not entitled to redundancy benefits. This includes where an employee agrees to perform work in another role as an employee of the Employer after the employee's role is declared redundant, however this provision does not require an application to the Commission to vary redundancy obligations as required by s.120 of the Act.
Clause 2.6.2 of the Agreement states that an employee will be deemed to have abandoned their employment if they have failed to attend for 3 consecutive rostered shifts. It is unclear from this clause whether they would be entitled to payment of notice of termination in accordance with ss. 117-123 of the Act
[7] I am satisfied that in accordance with the NES precedence term in Clause 1.3.4 of the Agreement, the above sections of the Agreement will be read and interpreted in conjunction with the NES.
Better off Overall Test (BOOT) Issues - Multiple Awards
[8] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Awards:
1. Clause 7 of the Agreement provides for an annualised salary clause in compensation for shift work, weekend penalty rates, overtime, allowances, annual leave loading and public holidays. The rates of pay do not appear high enough to compensate for these entitlements. Further, there is no effective reconciliation term in the Agreement in accordance with the decision in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery.[2]
[9] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement than under the Storage Award:
Clause 3.7 of the Agreement provides that a morning shift will start between the hours of 1:00am and 5:00am. Clause 20.1 of the Storage Award provides that an early morning shift commences between 2:00am and 7:00am. Under the Agreement it appears that employees will only be paid at ordinary rates instead of the shiftwork penalty of 112.5% (clause 20.4(a)) where a shift starts between 5:00am and 7:00am).
Clause 3.7 of the Agreement provides that an afternoon shift shall finish after 8:00pm and at or before 1:00am. Clause 20.1 of the Storage Award provides that an afternoon shift finishes after 6:00pm and at or before midnight. Under the Agreement it appears that employees will only be paid at ordinary rates instead of the shiftwork penalty of 115% (clause 20.4(b)) where a shift finishes between 6:00pm and 8:00pm whereas under the Storage Award employees would be entitled to an afternoon shift penalty.
Clause 3.7 of the Agreement provides that a morning shift will start between the hours of 1:00am and 5:00am and an afternoon shift shall finish after 8:00pm and at or before 1:00am. Clause 20.1 of the Storage Award provides that a night shift finishes after midnight and at or before 8:30am. Where a shift finishes between 1:00am and 8:30am under the Storage Award employees would be entitled to the night shift penalty of 130%, however under the Agreement employees will only be afforded a 115% shift penalty where a shift finishes before 1:00am or starts between 1:00am and 5:00am.
[10] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement than under the Road Transport Award:
Clauses 4.1.1(b), 4.1.2(d) and 4.1.4(b) of the Agreement provide for maximum daily hours of 10 hours per day, whereas clause 13 of the Road Transport Award provides for a maximum of 8 hours per day, where overtime rates would apply after 8 hours worked under the Award. Rates of pay for some full-time employees and all part-time and casual employees (who may work reduced hours during the week to compensate) may not be high enough to compensate employees who work in excess of 8 hours per day.
Clause 3.7 of the Agreement provides that an afternoon shift shall finish after 8:00pm and at or before 1:00am. Clause 22 of the Road Transport Award provides that an afternoon shift shall finish after 6:30pm and not later than 12:30am. Clause 4.1.1 of the Agreement provides that the ordinary span of hours will be between 4:30am and 7:30pm on Monday to Sunday. Where a shift finishes between 6:30pm and 7:30pm they would be entitled to afternoon shift penalty of 117.5% under the Award, whereas under the Agreement this appears to be paid at the ordinary rate.
Clause 3.7 of the Agreement provides that a morning shift will start between the hours of 1:00am and 5:00am and an afternoon shift shall finish after 8:00pm and at or before 1:00am. Clause 22 of the Road Transport Award provides that a night shift shall finish after 12:30am and not later than 8:30am. It appears that a shift that finishes between 12:30am and 1:00am, or between 5:00am and 8:30am under the Agreement will receive a reduced penalty when compared against the Award entitlement.
The Agreement is silent on penalties where a shift worker works a pattern of shifts that do not continue for at least five consecutive afternoons or nights. Clause 22.10 of the Road Transport Award provides 150% for the first 3 hours and 200% thereafter in these circumstances.
Clause 5.7 of the Agreement provides that work performed on a public holiday will be paid at 250%. Clause 23.2 of the Road Transport Award provides that where a permanent employee or casual employee performs work outside of ordinary hours on Good Friday and/or Christmas Day they will be entitled to 300% for all hours worked, and a casual employee will be entitled to casual loading in addition to this rate.
[11] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement than under the Clerks Award:
Clause 3.7 of the Agreement provides that a morning shift will start between the hours of 1:00am and 5:00am and an afternoon shift shall finish after 8:00pm and at or before 1:00am. Clause 25 of the Clerks Award provides that an afternoon shift shall finish after 7:00pm and at or before midnight and a night shift shall finish after midnight and at or before 7:00am. Under the Agreement it appears that employees will receive a reduced penalty rate of 115% where a shift finishes between midnight and 1:00am, and where a shift finishes between 5:00am and 7:00am when compared to the Award permanent night shift penalty of 130%.
Clause 4.2 of the Agreement provides that overtime worked from Monday to Saturday will be paid at 150% for the first 3 hours and 200% thereafter. Clause 21 of the Clerks Award provides that all overtime worked between Monday and Saturday will be paid at 150% for the first 2 hours and 200% thereafter for day workers and overtime worked in excess of daily hours for shift workers.
Clause 5.1.3 of the Agreement provides that annual leave loading will be paid at 17.5%, whereas clause 32.3 of the Clerks Award provides for 17.5% or the relevant weekend or shift work penalty (whichever is greater).
Clause 3.9 of the Agreement provides entitlements to allowances however is silent on some allowances in clause 19 of the Clerks Award such as the laundry and living away from home allowance.
The Agreement appears to be silent on providing entitlements for employees working during a meal break, inconsistent with clause 15.4 of the Clerks Award which provides an employer must pay an employee who is required to work through their meal break 200% of the minimum hourly rate from when the meal break would have commenced until a meal break is allowed.
[12] The Employer provided written submissions and undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule 1 of the Agreement. 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.
[13] 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.
[14] The United Workers' Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.
[15] In accordance with s.201(2), I note that the Agreement covers the UWU.
[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2025. The nominal expiry date of the Agreement is 1 September 2028.
[1] Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania, [2013] FWC 908, [39]-[48]
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