Linfox Armaguard Pty Ltd

[2022] FWCA 591

[2022] FWCA 591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Armaguard Pty Ltd

(AG2021/9152)

Armaguard Clerical & Cash Processing (Western Australia) Enterprise Agreement 2021

Road transport industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 21 FEBRUARY 2022

Application for approval of the Armaguard Clerical & Cash Processing (Western Australia) Enterprise Agreement 2021

1. Linfox Armaguard Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Armaguard Clerical & Cash Processing (Western Australia) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

·  Clause 15.4 – Termination without notice;

·  Clauses 15.6.2 and 25.16 – Deductions;

·  Clause 17.4 – Termination by abandonment;

·  Clauses 25.9 and 25.11 – Annual leave; and

·  Clause 26.7 – Personal leave.

1. I note that the Applicant has given an undertaking that the Agreement will be read in conjunction with the NES and where there is inconsistency between this Agreement and the NES, and the NES provides greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s.55 of the Act, an enterprise agreement must not exclude the NES, or any provisions of the NES, and s.56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s.55.

1. Undertakings were also provided by the Employer in response to concerns the Commission held in relation to whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)   cause financial detriment to any employee covered by the Agreement; or

(b)   result in substantial changes to the Agreement.

1. The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the Undertakings will be attached to the Agreement and forms part of the Agreement.

1. I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declarations in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

1. The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

1. The Agreement is approved in accordance with s.54 of the Act and will operate from 28 February 2022. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE515047  PR738576>

Annexure A