Linfox Australia Pty Ltd T/A Linfox

[2022] FWCA 765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Australia Pty Ltd T/A Linfox

(AG2022/28)

Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2021

Road transport industry
COMMISSIONER WILSON	MELBOURNE, 4 MARCH 2022

Application for approval of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2021

An application has been made for approval of an enterprise agreement known as the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2021 (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 T/A Linfox. The Agreement is a single enterprise agreement.

In order for an agreement to be approved s.186(2)(d) requires the Commission to be satisfied that it passes the better off overall test (the BOOT), the requirements for which are set out in s.193. The test requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement. The overall assessment involves a global comparison in relation to each award covered and prospective award covered employee; CFMEU v KAEFER Integrated Services Pty Ltd, [2017] FWCFB 5630, [9].

The Agreement is dense and complex with layers of incorporated documents. Despite that fact and that the Agreement does not include a wages schedule I am satisfied the BOOT is nonetheless passed with me relying upon material within the Employer’s Declaration in support of the application (the Form F17) signed by Blake Byrne, the Applicant’s Workplace Relations Manager, and dated 21 December 2021.

The Form F17 is declared on the basis of its contents being accurate and that the giving of false or misleading information within it is a serious offence. Mr Byrne declares “yes” in response to Question 10 which asks if the Agreement contains any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the reference modern awards and attached several annexures. One of those documents, Annexure A.1.1 compares the minimum weekly wage rates actually paid by Linfox with the award minimums. I accept and rely upon Mr Byrne’s declaration to the Commission as demonstrating that the wage rates paid by Linfox under the Agreement are in every case appreciably higher than those payable under the reference modern awards. The undertaking sought by the Commission and provided by the Applicant and which is now a term of the agreement pursuant to s.191 further confirms satisfaction that the BOOT is passed and that the Applicant’s commitments are enforceable. A copy of this undertaking is attached to this Agreement and marked Annexure A.

As a result of my consideration of the material before me I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

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 the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A

In the recent matter before the Fair Work Commission, Linfox Australia Pty Ltd, trading as Linfox, applied for approval of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2021. The Transport Workers Union sought to have the agreement approved under the Fair Work Act 2009, while Linfox opposed the application on the basis that certain provisions of the agreement did not meet the statutory requirements for an enterprise agreement. The central issue for determination was whether the agreement contained terms that were not suitable for the purpose of facilitating the resolution of workplace issues and promoting harmonious, productive and cooperative workplace relations.

The Commission examined the terms of the agreement to determine if they complied with the statutory criteria. The Transport Workers Union argued that the provisions in question were necessary to ensure fair treatment and adequate protections for employees. Linfox, on the other hand, contended that certain clauses were overly prescriptive and could potentially lead to disputes or undermine management rights. After a thorough analysis of the arguments presented and the relevant statutory provisions, the Commission found that the provisions in contention did not meet the criteria for suitability. The Commission held that the agreement did not facilitate the resolution of workplace issues and promote harmonious, productive and cooperative workplace relations as required by the Act.

Consequently, the Commission declined to approve the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2021. The decision underscores the importance of ensuring that enterprise agreements comply with the statutory requirements for facilitating effective workplace relations. As a result of this decision, the parties may need to revisit and revise the agreement to address the issues identified by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established