Linfox Armaguard Pty Ltd T/A Armaguard

[2024] FWCA 191

[2024] FWCA 191 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Armaguard Pty Ltd T/A Armaguard

(AG2023/5336)

ARMAGUARD CASH (WA) AGREEMENT 2023

Road transport industry
COMMISSIONER LIM	PERTH, 17 JANUARY 2024

Application for approval of the Armaguard Cash (WA) Agreement 2023

1. Linfox Armaguard Pty Ltd has made an application for the approval of an enterprise agreement known as the Armaguard Cash (WA) Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 14 February 2023.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note that clause 15.4 provides that the employer may dismiss an employee without notice for failure to follow standard operating procedures where the failure places at risk the safety of the employee or any other person, the security of cash or valuables at that time in their care, or the integrity of the employer’s security licencing, firearms licencing, or insurance cover. This may be broader than s 123 of the Act, which provides that the period of notice does not apply where an employee’s employment is terminated for serious misconduct only. However, I am satisfied that the undertaking provided by the Applicant will ensure that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers Union (the TWU), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 17 January 2024 and, in accordance with s 54, will operate from 24 January 2024.  The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE523149  PR770332>

ANNEXURE A