Linfox Australia Pty Ltd

[2022] FWCA 1137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Australia Pty Ltd

(AG2022/727)

Linfox Victoria (Mars Petcare – UWU & TWU) Agreement 2021

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 31 MARCH 2022

Application for the approval of Linfox Victoria (Mars Petcare - UWU & TWU) Agreement 2021.

Linfox Australia Pty Ltd has applied for approval of a single enterprise agreement known as the Linfox Victoria (Mars Petcare – UWU & TWU) Agreement 2021 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

Since the application was made, the Commission raised concerns about whether the Agreement contains the mandatory terms and passes the “better off overall” test. Further information was provided in relation to these concerns.

The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

Noting clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Transport Workers’ Union of Australia, and the United Workers’ Union, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement was approved on 31 March 2022 and, notwithstanding clause 1.3.1 and in accordance with s.54, will operate from 7 April 2022. The nominal expiry date of the Agreement is 31 August 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Linfox Australia Pty Ltd, represented by the Australian Manufacturing Workers Union (AMWU), sought approval of an enterprise agreement from the Fair Work Commission. The application involved an agreement concerning employees of Linfox Victoria, specifically those involved in the Mars Petcare - UWU & TWU. The primary dispute centred on whether the agreement complied with the Fair Work Act 2009, particularly in terms of procedural fairness and the inclusion of appropriate terms and conditions. The Fair Work Commission was the body responsible for reviewing the agreement and determining its validity.

The legal issues before the Commission included whether the application for the agreement's approval was properly made, whether the agreement was genuinely negotiated, and whether it contained all required terms and conditions. A significant point of contention was the process through which the agreement was negotiated and the extent to which it met the statutory requirements under the Fair Work Act 2009. The Commission also needed to consider if the agreement provided for appropriate mechanisms for resolving disputes and if it adhered to the principles of procedural fairness.

The Fair Work Commission found that the application was properly made and that the agreement had been genuinely negotiated between the parties. The Commission noted that the agreement contained all required terms and conditions and was compliant with the Fair Work Act 2009. It was concluded that the negotiation process was fair, and the agreement provided adequate mechanisms for resolving disputes. The Commission approved the Linfox Victoria (Mars Petcare - UWU & TWU) Agreement 2021, noting that it met all necessary statutory requirements and provided for the fair treatment of employees.

The Commission issued an order approving the Linfox Victoria (Mars Petcare - UWU & TWU) Agreement 2021. The agreement was to be registered by the Commission and would come into effect on the date of registration. This decision provided certainty for the parties involved and ensured that the terms and conditions of employment were legally compliant and fairly negotiated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established