Application for approval of the Bidfood Townsville- Enterprise Agreement 2025

[1] This decision deals with an application made for approval of an enterprise agreement known as the Bidfood Townsville- Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Burleigh Marr Distributions Pty Ltd and United Imports & Exports Co Pty Ltd T/A Bidfood Townsville (the Applicant). The Agreement is a single enterprise agreement.

[2] The application was required to be filed within 14 days after it was made on 13 September 2025 in accordance with s.185(3) of the Act. As it was not filed until 3 October 2025, it was filed one day after the expiry of the statutory timeframe. Pursuant to s.185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

[3] The Notice of Employee Representational Rights (NERR) distributed to employees appears to be the pre-6 June reforms version and also appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

[4] In respect of the notice of vote provided to the employees, I note it does not include the location of the vote in accordance with paragraph 16 of the Statement of Principles on Genuine Agreement (SOPGA).[2] However, I am satisfied, based on the submissions made by the Applicant, that they advised affected staff in meetings on 9 and 10 September; based on the submissions of the United Workers Union (UWU) in their Form F18, that the UWU support the approval of the Agreement; and per paragraph 19 of the SOPGA, that the Agreement has been genuinely agreed.

[5] The Agreement contains a provision at clause 3.4.4 that provides an employer may deduct, from any amount required, up to a maximum of 10% of the employee's full rate of pay for a week, unless otherwise agreed to be paid to an employee under this clause, the amount of any overpayment. I note that this provision may be unenforceable as a deduction contrary to s.324 of the Act.

[6] Correspondence was sent to the Employer by my chambers on 17 October 2025 raising a number of concerns including that the Agreement contains provisions that may affect the better off overall test in respect to annualised salaries, span of hours, cumulative casual penalties, public holidays for casuals, Sunday penalties, morning shift, afternoon shift, night shift, maximum daily hours, overtime (Monday to Saturday), non-consecutive shift work, public holidays, permanent night shift, allowances and work during meal breaks.

[7] The Employer responded on 24 October 2024 and having considered those responses I make the following findings:

1. Annualised Salaries - I am satisfied that the Individual Flexibility Agreement (IFA) provisions provide a satisfactory safeguard for employees.

2. Casual Cumulative Penalties - I am satisfied, based on the roster patterns submitted by the Applicant, which include 10 hours of ordinary pay with two hours of overtime, which the Applicant submits are reasonably foreseeable, that those employees are sufficiently compensated under the Agreement;

3. Public Holidays for Casuals - I am satisfied, based on the roster patterns submitted by the Applicant, which include 30.2 ordinary hours and 7.6 hours of work on a public holiday for Storage Services and Wholesale Award 2020 (Storage Award) employees and Road Transport and Distribution Award 2020 (Road Transport Award) employees, or 22.8 ordinary hours and 7.6 hours of work on a Public Holiday for Clerks Private Sector Award 2020 (Clerical Award) employees, which the Applicant submits are reasonably foreseeable that those employees are sufficiently compensated under the Agreement;

4. Sunday Penalties - I am satisfied, based on the roster patterns submitted by the Applicant, which include casual Storage Award employees working 10 ordinary hours and 10 hours on a Sunday, part-time Storage Award employees working 10 ordinary hours and 7.6 hours on a Sunday, or Road Transport Award employees not working on weekends, which the Applicant submits are reasonably foreseeable, that those employees are sufficiently compensated under the Agreement;

5. I am satisfied that it is not reasonably foreseeable that employees engaged under this Agreement:

   • who would otherwise be engaged pursuant to the Storage Award will undertake night shift work, morning or afternoon shifts based on the rosters provided as set out above;

   • who would otherwise be engaged pursuant to the Road Transport Award will not work on a public holiday or will work based on the rosters set out above, and for part-time employees will be based on a minimum of 15 hours per week;

   • who would otherwise be engaged pursuant to the Clerical Award will not undertake night shift work, work during meal breaks or otherwise trigger a laundry or living-away-from-home-allowance.

On this basis, I am consequently satisfied, per s. 193A(6A) of the Act, that, for the purposes of s.193A(6) of the Act, that the better off overall test is satisfied. I note that, should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.

[8] On the basis of the material contained in the application and accompanying declarations, having regard to the SOPGA,[3] I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[9] I observe that the following provisions may in some circumstances be inconsistent with the National Employment Standards (NES):

• Clause 5.2.5(a) - Personal /Carers/Compassionate/Family Violence Leave notification

• Clause 7.1.6 - Personal/Carers Leave notice and evidence requirements

However, noting clause 1.3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[10] The UWU lodged a Form F18 statutory declaration giving 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 the Agreement covers the UWU.

[11] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 September 2028.

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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