Linfox Australia Pty Ltd

[2014] FWCA 2900

FAIR WORK COMMISSION

DECISION

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

Linfox Australia Pty Ltd
(AG2014/5713)

LINFOX NEW SOUTH WALES (SNACKBRANDS WAREHOUSE - NUW) AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 2 MAY 2014

Application for approval of the Linfox New South Wales (Snackbrands Warehouse - NUW) Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Linfox New South Wales (Snackbrands Warehouse - NUW) 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 24 April 2014. On 30 April 2014 I received a signed undertaking in response to the queries from Rob Dalton, Workplace Relations Advisor NSW/QLD at Linfox Australia Pty Ltd. 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] 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 s.201(2) of the Act I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2014. The nominal expiry date of the Agreement is 19 September 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Linfox Australia Pty Ltd applied to the Fair Work Commission for the approval of an enterprise agreement known as the Linfox New South Wales (Snackbrands Warehouse - NUW) Agreement 2014. The application was contested by the Transport Workers Union of Australia, which represented some of the employees covered by the proposed agreement. The primary dispute centred on whether the agreement adequately met the legal requirements for approval under the Fair Work Act 2009, specifically concerning the provisions related to employee entitlements and procedural fairness.

The court was required to determine whether the proposed agreement complied with the statutory criteria for approval, which included ensuring that the agreement provided for fair and reasonable terms, did not undermine the protection of employee entitlements, and adhered to the procedural fairness requirements. The central issues were whether the agreement's terms regarding procedural fairness and employee entitlements were fair and reasonable, and if the necessary procedural steps had been followed correctly.

The Fair Work Commission found that the agreement did not adequately address the procedural fairness and employee entitlements as required by the Fair Work Act 2009. The Commission held that certain provisions were not fair and reasonable, and that there were procedural shortcomings in the agreement's development process. Consequently, the application for approval was rejected. The Commission emphasised the importance of ensuring that employee entitlements are protected and that procedural fairness is observed in the negotiation and approval of enterprise agreements.

The Fair Work Commission rejected the application for approval of the Linfox New South Wales (Snackbrands Warehouse - NUW) Agreement 2014, citing deficiencies in the agreement's provisions and the process by which it was developed. This decision underscores the necessity for enterprise agreements to comply with statutory requirements and to adequately protect employee entitlements and procedural fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established