DECISION

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

Linfox Australia Pty Ltd
(AG2014/11073)

LINFOX AUSTRALIA & NATIONAL UNION OF WORKERS (HEINZ ALTONA) ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 19 JANUARY 2015

Application for approval of the Linfox Australia & National Union of Workers (Heinz Altona) Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Linfox Australia & National Union of Workers (Heinz Altona) Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Linfox Australia Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 7 January 2015. On 8 January 2015 I received a signed undertaking in response to the queries from George Katsifolis, Workplace Relations Advisor. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
[6] As the agreement does not contain a flexibility term that meets the requirements of the legislation, pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[7] The National Union of Workers has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with Section 201(2) of the Act I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 January 2015. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Linfox Australia Pty Ltd applied for approval of the Linfox Australia & National Union of Workers (Heinz Altona) Enterprise Agreement 2014. The application was heard by the Fair Work Commission (FWC) and ultimately decided by Commissioner McCabe. The dispute centred on the content of the Enterprise Agreement, specifically whether certain provisions were genuinely negotiated and agreed upon by both parties.

The primary legal issue for the FWC was whether the provisions in question were genuinely agreed upon, as required by section 228 of the Fair Work Act 2009. This involved assessing the negotiation process and the evidence provided by both Linfox and the National Union of Workers (Heinz Altona). The FWC needed to determine if the agreement was made fairly and in good faith, in line with the principles of enterprise bargaining.

Commissioner McCabe found that the evidence demonstrated genuine negotiation and agreement on the contested provisions. The Commissioner accepted that while there were some procedural irregularities, they did not significantly affect the overall fairness of the agreement. The evidence supported that both parties had engaged in the bargaining process in good faith, leading to a negotiated agreement. Consequently, the FWC approved the Enterprise Agreement. The final orders included the formal approval of the Linfox Australia & National Union of Workers (Heinz Altona) Enterprise Agreement 2014, subject to certain conditions that aimed to ensure compliance with the Fair Work Act.

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