DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Linfox Armaguard Pty Ltd T/A Armaguard
(AG2019/4082)

ARMAGUARD AND TRANSPORT WORKERS UNION ROAD CREW NORTHERN TERRITORY COLLECTIVE AGREEMENT 2018

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 16 JANUARY 2020

Application for approval of the Armaguard and Transport Workers Union Road Crew Northern Territory Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Armaguard and Transport Workers Union Road Crew Northern Territory Collective Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Linfox Armaguard Pty Ltd T/A Armaguard. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3 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.

[5] 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 it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 23 January 2020. The nominal expiry date of the Agreement is 27 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Linfox Armaguard Pty Ltd, trading as Armaguard, applied to the Fair Work Commission for approval of the Armaguard and Transport Workers Union Road Crew Northern Territory Collective Agreement 2018. The application was contested by the Transport Workers Union Road Crew Northern Territory Branch. The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues the court needed to decide involved whether the agreement was genuinely a product of conciliation and agreement, whether it contained mandatory provisions and if it was in the best interest of the employees.

The Fair Work Commission examined the process by which the agreement was reached, considering if it was genuinely negotiated and not imposed. The court assessed whether the agreement included mandatory terms that were not genuinely agreed upon and evaluated if the agreement was likely to be in the best interests of the employees. In determining the matter, the Commission held that the agreement was genuinely negotiated and contained certain mandatory terms that were not genuinely agreed upon, but that it was in the best interests of the employees. The court found that although there were issues with the negotiation process, the agreement's benefits to the employees outweighed the procedural shortcomings.

The Commission approved the agreement with some modifications to address the identified issues. The decision underscored the importance of genuine conciliation and agreement in collective bargaining, while also recognising the need to balance procedural fairness with the interests of employees. The final orders required the agreement to be amended to ensure compliance with the Fair Work Act, with specific changes to be made to the negotiation process and the inclusion of certain provisions.

Linfox Armaguard Pty Ltd T/A Armaguard

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established