Linfox Armaguard Pty Ltd T/A Armaguard

[2023] FWCA 1889

[2023] FWCA 1889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Linfox Armaguard Pty Ltd T/A Armaguard

(AG2023/1673)

ARMAGUARD ROAD (SA) AGREEMENT 2023

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 27 JUNE 2023

Application for approval of the Armaguard Road (SA) Agreement 2023.

1. An application has been made for approval of an enterprise agreement known as the Armaguard Road (SA) Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Linfox Armaguard Pty Ltd T/A Armaguard (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 June 2023.

1. There are three National Employment Standards (NES) issues that require comment:

·   Compassionate Leave: Clause 25 of the Agreement provides for compassionate leave when a member of the employee’s immediately family or household: (a) contracts or develops a personal illness that poses a serious threat to his or her life; or (b) sustains a personal injury that poses a serious threat to his or her life; or (c) dies. In addition, s.104(1)(b) of the Act also provides for compassionate leave when a child is stillborn where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive; and s.104(1)(c) of the Act provides compassionate leave where the employee, or the employee’s spouse or de facto partner, has a miscarriage. It appears the Agreement does not provide for compassionate leave consistent with the Act.

·   Deduction from NES Entitlements on Termination: Clause 27.2.2 provides that if an employee fails to give the notice specified in 27.2.1 Armaguard has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received under 27.2.1. The effect of this clause is it appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination or redundancy payments). This raises the issue that cl. 27.2.2 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act

·   Abandonment of Employment: Clause 26 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss. 117–123 of the Act (see Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]).

1. Clause 2.6 of the Agreement acts as an effective NES precedence clause, in that it states that ‘This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency’. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 22 June 2023. The undertaking deals with the following topic:

·   Despite clause 15.2.1 of the Agreement, the span of ordinary hours will be 6:00am to 7:00pm.

1. 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 did not express any view on the undertaking.

1. 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.

1. 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.

1. 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. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 3 July 2026.

COMMISSIONER

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