DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Linfox Australia Pty Ltd
(AG2021/5280)

LINFOX AUSTRALIA (UNILEVER WAREHOUSES - UWU) GREENFIELDS AGREEMENT 2021

Road transport industry
COMMISSIONER CIRKOVIC	MELBOURNE, 31 MAY 2021

Application for approval of the Linfox Australia (Unilever Warehouses - UWU) Greenfields Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Linfox Australia (Unilever Warehouses - UWU) Greenfields Agreement 2021 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by Linfox Australia Pty Ltd. The agreement is a single enterprise agreement that is a greenfields agreement.

[2] The matter was allocated to my Chambers on 26 May 2021.

[3] The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

[4] In accordance with s.187(5)(a) of the Act, I am satisfied that the United Workers’ Union (UWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

[5] Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the UWU and that the Agreement covers this organisation.

[6] On 26 May 2021, my Chambers contacted the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[7] The Applicant has submitted an undertaking in the required form dated 27 May 2021. The undertaking deals with the following topics:

• Clause 50, which deals with abandonment of employment, will be applied consistently with s.117 of the Act.

[8] A copy of the undertaking has been provided to the UWU and I have sought their views in accordance with s.190(4) of the Act. The UWU did not raise any issues with the undertaking.

[9] 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.

[10] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[11] I am satisfied that it is in the public interest to approve the Agreement.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement.

[13] I note that the Agreement expresses the nominal expiry as “four years from the commencement of the agreement”, however, pursuant to s.186(5)(b) of the Act, the nominal expiry shall be four years from the date of this approval decision.

COMMISSIONER

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CaseChat Overview and Summary

Linfox Australia Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement, which was made with the assistance of the Australian Building and Construction Commission. The applicants were Linfox and the Construction, Forestry, Maritime, Mining and Energy Union. The respondents were the Commission and a group of employees. The dispute arose from the negotiation and proposed implementation of the Linfox Australia (Unilever Warehouses - UWU) Greenfields Agreement 2021. The Commission was required to decide whether the agreement should be approved, having regard to the relevant legislative criteria.

The key legal issues before the Commission were whether the agreement was genuinely an enterprise agreement, whether it contained only matters that were bargainable, and whether it met the "better off overall test". The Commission examined the process by which the agreement was made, including the role of the Commission, and whether there was sufficient genuine bargaining. The Commission also considered whether the agreement contained any prohibited content and whether it met the "better off overall test" by comparing the overall pay and conditions of employees under the agreement with their entitlements under the relevant award.

The Commission found that the agreement was genuinely an enterprise agreement, as it was made in good faith, with genuine bargaining and without the undue influence of the Commission. The Commission also found that the agreement contained only bargainable matters and did not include any prohibited content. Finally, the Commission determined that the agreement met the "better off overall test", as employees would be better off overall by accepting the agreement. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the Linfox Australia (Unilever Warehouses - UWU) Greenfields Agreement 2021, finding that it was genuinely an enterprise agreement, contained only bargainable matters, and met the "better off overall test".

Linfox Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established