Linfox Armaguard Pty Ltd

[2019] FWCA 6786

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Armaguard Pty Ltd

(AG2019/2972)

Armaguard Road Crew (South Australia) Enterprise Agreement 2018

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 4 OCTOBER 2019

Application for approval of the Armaguard Road Crew (South Australia) Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Armaguard Road Crew (South Australia) Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Linfox Armaguard Pty Ltd. The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 30 August 2019.

On 23 September 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 30 September 2019. The undertaking deals with the following topics:

· The Applicant has inserted a National Employment Standards (NES) precedence clause.

· Permanent employees working between 9pm and 11pm Monday to Friday will be entitled to a 25% loading for those hours worked.

· Employees who work shifts ending between 10pm and 11pm Monday to Friday will be entitled to a 25% loading for those hours worked.

· Upon termination, the Applicant will pay employees for untaken time off in lieu at the applicable overtime rate.

· An employee working in mobile cash units will be paid an allowance of $47.06 per week.

· All employees, including casual employees, working shift work will be paid shift allowances provided in clause 15.8.3.

· A shift worker will be paid double time for work on a rostered shift, the major portion of which is performed on a Sunday.

· Shift workers who work on afternoon or night shift which does not continue for at least five consecutive afternoons or nights will be paid at the rate of time and a half for the first three hours and double time after that for each shift.

· All hours worked on a Saturday will be paid at the rate of time and a half for the first two hours and double time thereafter.

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 5 October 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Linfox Armaguard Pty Ltd recently brought an application before the Fair Work Commission concerning the approval of the Armaguard Road Crew (South Australia) Enterprise Agreement 2018. The applicant sought to have the enterprise agreement, which was negotiated between the employer and the relevant union, recognised as a certified agreement under the Fair Work Act 2009. The union representing the employees had already certified the agreement, but the employer needed the Commission’s formal approval to ensure its enforceability and compliance with the statutory requirements.

The primary legal issue before the Commission was whether the enterprise agreement met the necessary criteria for approval under section 231 of the Fair Work Act. This involved assessing whether the agreement was fairly negotiated, free from any coercion, and whether it contained provisions that were consistent with the Act’s objectives. The Commission also considered whether the agreement contained any unfair content that could potentially undermine its enforceability.

In examining the application, the Commission reviewed the negotiation process and the content of the agreement. The Commission found that the agreement was fairly negotiated and that there was no evidence of any coercion. It also found that the agreement contained no unfair provisions and that it complied with the statutory requirements of the Fair Work Act. The Commission was satisfied that the agreement was in the best interests of the employees and met all the criteria for approval. Consequently, the Commission approved the enterprise agreement, making it a certified agreement under the Fair Work Act.

The Commission’s decision effectively resolved the application, leading to the formal approval of the Armaguard Road Crew (South Australia) Enterprise Agreement 2018. This outcome ensures that the agreement is legally binding and enforceable, providing a framework for the terms and conditions of employment for the relevant employees.

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