Linfox Australia Pty Ltd Summary

[2014] FWCA 781

FAIR WORK COMMISSION

DECISION

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

Linfox Australia Pty Ltd
(AG2014/3438)

LINFOX NEW SOUTH WALES (ARNOTT'S WAREHOUSES - NUW) AGREEMENT 2013

Storage services
COMMISSIONER ROE	MELBOURNE, 31 JANUARY 2014

Application for approval of the Linfox New South Wales (Arnott's Warehouses - NUW) Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Linfox New South Wales (Arnott's Warehouses - NUW) Agreement 2013 (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 23 January 2014. On 30 January 2014 I received a signed undertaking in response to the queries from Nick Leon, Workplace Relations Manager, 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 7 February 2014. The nominal expiry date of the Agreement is 19 September 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Linfox Australia Pty Ltd applied to the Fair Work Commission for approval of the Linfox New South Wales (Arnott's Warehouses - NUW) Agreement 2013. The applicant sought approval under section 234 of the Fair Work Act 2009, arguing that the agreement contained provisions that were more favourable to employees than the applicable modern award. The Commission was tasked with determining whether the provisions in the agreement were, in fact, more favourable and if they were within the scope of agreements that could be subject to the better off overall test (BOOT).

The Commission had to decide whether the provisions in the agreement were genuinely more favourable to the employees than the terms and conditions set out in the relevant modern award. This involved assessing the specific terms and conditions of the agreement against those in the award to ascertain if the employees would be better off overall if the agreement was approved. The Commission also considered whether the agreement was within the scope of agreements that could be subject to the BOOT, ensuring that the agreement met the legal criteria for approval.

After examining the terms of the agreement and comparing them with the modern award, the Fair Work Commission found that the provisions in the agreement were indeed more favourable to the employees. The Commission was satisfied that the employees would be better off overall if the agreement was approved. Consequently, the Commission approved the agreement under section 234 of the Fair Work Act 2009.

The Commission's final order approved the Linfox New South Wales (Arnott's Warehouses - NUW) Agreement 2013, effective from 1 July 2013, subject to the terms and conditions outlined in the agreement. The approval was based on the determination that the agreement contained provisions that were more favourable to the employees than the applicable modern award and met the requirements for approval under the Fair Work Act 2009.

Linfox Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established