[1] Cater Plus Pty Ltd trading as Bidfood Adelaide (the Employer) has made an application for approval of an enterprise agreement known as the Bidfood Adelaide 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), Road Transport and Distribution Award 2020 (Road Transport Award), Clerks - Private Sector Award 2020 (Clerks Award), Commercial Sales Award 2020 (Commercial Award), or Meat Industry Award 2020 (Meat Award).

Inconsistencies with the National Employment Standards (NES)

[3] The Commission raised the following clauses of the Agreement with the Employer which appeared to be inconsistent with the NES:

1. Clause 3.5.4 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. These provisions do not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to deduct employee's entitlements under the NES, inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

2. Clause 7.6.4 states that the Employer may deduct an amount for the loss or damage of protective clothing. This appears inconsistent with s.324 of the Act which provides for permitted deductions.

3. Clause 7.1.6 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 deadlines. This provision is stated to operate notwithstanding any evidence requirements of the Act and therefore appears to attempt to exclude the NES.

[4] In accordance with the NES precedence term in clause 1.3.5 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

[5] 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 Award:

1. The Agreement states that an adult apprentice will be paid 80% of Grade 1 Level 2 for the first year of the apprenticeship and then the lowest rate adult rate pursuant to clause 3.2 for the subsequent years or the rate clause at 3.4.1 of the Agreement, whichever the greater. Clause 3.2.1 of the Agreement does not provide a Grade 1 Level 2 classification, nor pay rate.

2. Year 1 Adult Apprentices are paid 1.14% below the Meat Award.

1. Clause 4.1.4(d) of the Agreement states that the casual loading shall not be paid on overtime. Employees are entitled to receive their casual loading on overtime under clauses 21.1(d) of the Storage Award and 21.4(a) of the Clerks Award. Drivers are entitled to a 10% loading for overtime under clause 11.4 of the Road Transport Award. Rates of pay do not appear high enough to compensate especially considering the less beneficial Sunday penalties.

1. Clause 4.1.4(d) of the Agreement provides that casual loading is not paid on public holidays. Clause 22.1(d) of the Storage Award, clause 22.8 of the Road Transport Award and clause 11.1 of the Clerks Award provide casual loading on a cumulative basis. Casual employees who work public holidays in isolation do not appear to be better off overall.

2. Appendix 3 of the Agreement provides that a listed employee (employed prior to 14 February 2020) employed as a driver required to work on a route listed in this clause will be entitled a payment of one percent of the total of the invoiced Bidfood product delivered (excluding any fruit, vegetables or meat (including but not limited to poultry) by that employee less customer rebates in lieu of overtime, allowances and penalties. It is unclear whether the employee will be better off overall as no information has been provided as to the total of the invoiced Bidfood product delivered.

3. The Agreement provides that a salaried employee will be paid at least $65,000.00 per annum or $32.8947 per hour in accordance with clause 7.8 (Annual Salaries) of the Agreement. Clause 7.8.3 of the Agreement provides that salaried employees are excluded from receiving shift allowances, weekend penalty rates, overtime, first aid allowance, freezer allowance, cash collection allowance, annual leave loading, and public holiday penalty. Clause 7.8.1 of the Agreement provides that annual salary arrangements under clause 7.8 are an extension of and an addendum to the operation of clause 1.6 (Individual Flexibility Term).

[6] The Employer provided written undertakings, submissions and spreadsheets to address the above BOOT issues. A copy of the undertakings is attached in Schedule 1.

[7] 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.

[8] I am satisfied that the patterns of work in the spreadsheets provided by the Employer are reasonably foreseeable for the purpose of s.193A(6) of the FW Act.

[9] 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.

[10] 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.

[11] In accordance with s.201(2), I note that the Agreement covers the UWU.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 December 2025. The nominal expiry date of the Agreement is 1 October 2028.

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