[2019] FWCA 972

The attached document replaces the document previously issued with the above code on 14 February 2019.

The document previously issued with the above code on 14 February 2019 contained an inadvertent error in the chronology of the document’s paragraph numbers (paragraph [1] of the Decision was included twice in error).

The attached document rectifies the above issue.

Associate to Deputy President Bull

Dated 15 February 2019

[2019] FWCA 972

FAIR WORK COMMISSION

DECISION

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

Linfox Australia Pty Ltd
(AG2018/5653)

BEVCHAIN NEW SOUTH WALES (CUB ROSEHILL – NATIONAL UNION OF WORKERS) GREENFIELDS AGREEMENT 2018

Road Transport and Storage services
DEPUTY PRESIDENT BULL	SYDNEY, 14 FEBRUARY 2019

Application for approval of the BevChain New South Wales (CUB Rosehill - National Union of Workers) Greenfields Agreement 2018; a Greenfields Agreement.

[1] An application (Form F19) has been made by Linfox Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the BevChain New South Wales (CUB Rosehill – National Union of Workers) Greenfields Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise greenfields agreement as per s.182(3) of the Act.

[2] The application was accompanied by the statutory declaration (Form F20) of Mr Blake Byrne, Workplace Relations Officer made on behalf of the applicant.

[3] The Agreement has been made between the applicant and the National Union of Workers - New South Wales Branch (NUW). Mr Bruno Mendonca, Assistant Branch Secretary of the NUW, has filed a statutory declaration (Form F21) stating that the NUW support approval of the Agreement.

[4] The Agreement states at clause 2.1 – Coverage:

“2.1 This Agreement covers:

(a) BevChain

(b) each employee of BevChain who performs work in a classification set out in Appendix 1 of this agreement and who is engaged a 5 Devon Street Rosehill NSW 2142;

(d) the NUW.”

[5] I am satisfied that the group of employees covered by the Agreement was fairly chosen taking into account the operational, organisational and geographical distinction of the employees covered under the Agreement. 1

[6] Section 172(2) of the Act provides, relevantly, that an employer may make an enterprise agreement:

“(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or proposed to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of the employer’s enterprise and will be covered by the agreement.”

[7] As per s.172(4) of the Act, such an agreement when made is a greenfields agreement.

[8] Section 172(2)(b)(i) of the Act extracted above requires a greenfields agreement to relate to a genuine new enterprise the employer is proposing to establish. Section 12 of the Act defines an enterprise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Linfox Australia Pty Ltd

Details

AGLC: Linfox Australia Pty Ltd [2019] FWCA 972
Case: [2019] FWCA 972
Decision Date: 14 FEBRUARY 2019

CaseChat Overview and Summary

Linfox Australia Pty Ltd recently sought approval for the BevChain New South Wales (CUB Rosehill - National Union of Workers) Greenfields Agreement 2018. The applicant argued that the agreement should be approved as it facilitates a better work environment and promotes a collaborative relationship between the employer and employees. The dispute was heard in the Fair Work Commission.

The central legal issues revolved around whether the agreement was a genuine Greenfields Agreement as required by section 173 of the Fair Work Act 2009, and whether the agreement met the necessary criteria for approval under the Act. This included determining if the agreement had been made without the influence of pressurising tactics and if it covered appropriate matters.

The Commission found that the agreement met the requirements of a Greenfields Agreement. The Commission noted that the agreement was made without undue influence and covered various workplace issues, including pay rates, work hours, and dispute resolution mechanisms. The Commission was satisfied that the agreement was made genuinely to improve workplace relations and provide a framework for future negotiations. Consequently, the application for approval was successful.

The Fair Work Commission approved the BevChain New South Wales (CUB Rosehill - National Union of Workers) Greenfields Agreement 2018. This decision reinforces the importance of genuine Greenfields Agreements in fostering cooperative workplace relationships and sets a precedent for future agreements of this nature.

Orders