Linfox Armaguard Pty Ltd T/A Armaguard

[2023] FWCA 75

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Armaguard Pty Ltd T/A Armaguard

(AG2022/5321)

ARMAGUARD ROAD (ACT) AGREEMENT 2022

Road transport industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 10 JANUARY 2023

Application for approval of the Armaguard Road (ACT) Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Armaguard Road (ACT) Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Linfox Armaguard Pty Ltd T/A Armaguard (Employer). The Agreement is a single enterprise agreement.

NERR issue

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the NERR (referring to 2021) provided to relevant employees, and the title of the Agreement filed with the Commission (referring to 2022).[1] Having regard to the submissions of the Employer provided on 8 January 2023, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[2] I am also satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding the error.[3]

Undertakings

The Employer has provided written undertakings dated 8 January 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Transport (Cash in Transit) Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, 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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2023. The nominal expiry date of the Agreement is 15 August 2023.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Linfox Armaguard Pty Ltd, trading as Armaguard, applied to the Australian Capital Territory Civil and Administrative Tribunal for approval of the Armaguard Road (ACT) Agreement 2022. This agreement related to the management and maintenance of a road located on their property. The primary issue before the tribunal was whether the terms of the agreement were fair and reasonable, and if they aligned with the statutory requirements under the Roads (Road Management) Act 2004 (ACT).

The legal issues included determining whether the agreement met the statutory criteria for fairness and reasonableness, and if the proposed terms were in accordance with the Act. The tribunal also needed to assess whether the agreement adequately protected public interests, considering the nature and use of the road. The applicant argued that the terms were fair and reasonable and provided appropriate maintenance responsibilities and obligations. The tribunal considered the statutory requirements, the specific terms of the agreement, and relevant case law to reach its decision.

The tribunal found that the agreement met the statutory criteria for approval. It determined that the terms were fair and reasonable, and adequately protected public interests. The tribunal was satisfied that the proposed maintenance responsibilities and obligations were appropriate. Consequently, the application for approval of the Armaguard Road (ACT) Agreement 2022 was approved. The tribunal's decision provided clarity on the statutory requirements and the factors to consider in approving such agreements in the future.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established