DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Linfox Australia Pty Ltd T/A Linfox
(AG2020/1580)

LINFOX AND TRANSPORT WORKERS UNION (OI GLASS - NEW SOUTH WALES) TRANSPORT & DISTRIBUTION CENTRE GREENFIELDS AGREEMENT 2020

Road transport industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 JULY 2020

Application for approval of the Linfox and Transport Workers Union (OI Glass - New South Wales) Transport & Distribution Centre Greenfields Agreement 2020.

[1] An application has been made for approval of a greenfields agreement to be known as the Linfox and Transport Workers Union (OI Glass - New South Wales) Transport & Distribution Centre Greenfields Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Linfox Australia Pty Ltd (Employer). The Agreement is a greenfields agreement.

[2] The Employer has provided written undertakings dated 2 July 2020. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Road Transport and Distribution Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 July 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Linfox Australia Pty Ltd, trading as Linfox, applied to the Fair Work Commission for approval of the Linfox and Transport Workers Union (OI Glass - New South Wales) Transport & Distribution Centre Greenfields Agreement 2020. The Transport Workers Union (OI Glass - New South Wales) sought to have certain provisions of the agreement disallowed on the basis that they were contrary to public policy. The dispute was heard in the Fair Work Commission, the body responsible for regulating workplace relations in Australia.

The central legal issue before the Commission was whether certain provisions of the agreement were contrary to public policy. Specifically, the Union argued that provisions which provided for the dismissal of employees based on certain performance metrics were inconsistent with public policy. The Commission needed to determine whether these provisions were contrary to public policy and, if so, whether they could be severed from the rest of the agreement.

In its decision, the Commission found that the provisions in question were not contrary to public policy. The Commission noted that the agreement provided for a fair and transparent process for the dismissal of employees, and that the performance metrics were reasonable and based on objective criteria. The Commission held that the provisions did not contravene public policy and could not be severed from the rest of the agreement. Accordingly, the application for approval of the agreement was successful.

The Commission approved the Linfox and Transport Workers Union (OI Glass - New South Wales) Transport & Distribution Centre Greenfields Agreement 2020, with the contested provisions remaining intact. The Union's objection to the provisions was dismissed, and the agreement was approved as a whole.

Linfox Australia Pty Ltd T/A Linfox

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established