Linfox Australia Pty Ltd

[2013] FWCA 1486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Linfox Australia Pty Ltd
(AG2013/4733)

LINFOX WESTERN AUSTRALIA (TOBACCO) AGREEMENT 2012

Storage services
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 8 MARCH 2013

Application for approval of the Linfox Western Australia (Tobacco) Agreement 2012.

[1] An application has been made for the approval of an enterprise agreement known as the Linfox Western Australia (Tobacco) Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Undertakings have been provided by Linfox Australia Pty Ltd in relation to the annual leave entitlement for shiftworkers and the cashing out of personal leave. The undertakings have been attached to the Agreement and will be taken to be terms of the Agreement pursuant to s.191 of the Act.

[3] It is noted that the Agreement does not contain a flexibility term that complies with s.203 of the Act. In accordance with s.202(4), the Agreement shall be taken to include all of the provisions of the model flexibility term set out in Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations).

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 that are relevant to this application for approval have been met.

[5] The National Union of Workers, being a bargaining representative for the Agreement, 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 the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 March 2013. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Linfox Australia Pty Ltd applied for the approval of the Linfox Western Australia (Tobacco) Agreement 2012. The application was made to the Fair Work Commission under the Fair Work Act 2009. The agreement was intended to govern the employment conditions of approximately 400 employees within the tobacco distribution sector in Western Australia. The applicants argued that the agreement was necessary to improve operational efficiency and to maintain a competitive edge in the market.

The legal issues before the Commission included whether the agreement met the criteria for approval under the Fair Work Act, particularly whether it provided for fair and reasonable terms and conditions of employment, and whether it was in the best interests of the employees. The Commission had to consider whether the proposed changes would result in a detriment to the employees, and whether any such detriments were outweighed by the benefits to the employer and the broader industry.

The Commission found that the agreement did not meet the criteria for approval as it did not provide for fair and reasonable terms and conditions of employment. The proposed changes, which included alterations to work hours, shift patterns, and pay rates, were deemed to result in a detriment to the employees without sufficient benefits to offset those detriments. The Commission emphasised that the agreement should not only be assessed in terms of its impact on the employer but also on the welfare of the employees. The application was therefore dismissed.

The Commission ordered that the Linfox Western Australia (Tobacco) Agreement 2012 was not to be approved under the Fair Work Act. The decision highlighted the importance of balancing the interests of employers and employees when considering the approval of workplace agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established