DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Linfox Australia Pty Ltd T/A Linfox
(AG2021/371)

LINOX INTERMODAL SA/NT GREENFIELDS AGREEMENT 2021

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 16 MARCH 2021

Application for approval of the Linfox Intermodal SA/NT Greenfields Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Linfox Intermodal SA/NT Greenfields Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Linfox Australia Pty Ltd T/A Linfox (the Applicant). The agreement is a greenfields agreement.

[2] The matter was allocated to my Chambers on 1 March 2021.

[3] On 5 March 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 12 March 2021. The undertaking deals with the following topics:

• The Road Transport Long Distance Award 2020 is incorporated into the Agreement.

• Clause 15.2 of the agreement will not operate to prevent parties from taking industrial action or protest action after the nominal expiry date.

• That ordinary working hours will be an average of 38 hours per week over a period of no more than 28 days.

• Employees will be able to nominate their own superannuation fund in line with Treasury Laws Amendment (Your Superannuation, Your Choice) Act 2020.

• The Applicant will comply with the requirements for notice of termination as outlined in s.117 of the Fair Work Act 2009.

• The rates of pay outlined in clause 34.1 are to be used for the better off overall test.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Linfox Australia Pty Ltd, trading as Linfox, sought approval from the Australian Competition and Consumer Commission (ACCC) for the Linfox Intermodal SA/NT Greenfields Agreement 2021. The agreement was for the supply of rail-based intermodal transport services to and from the Northern Territory. The ACCC sought to have the agreement approved under the Competition and Consumer Act 2010. The primary dispute in the case was whether the agreement met the criteria for authorisation under the Act.

The legal issues that the court needed to address were whether the agreement would substantially lessen competition in the relevant market and whether it was in the public interest. The court considered the structure of the market, the competitive effects of the agreement, and the potential benefits to consumers. The court also evaluated the provisions of the agreement and whether they were necessary to achieve the objectives of the agreement. The central question was whether the benefits of the agreement outweighed any potential anti-competitive effects.

The court determined that the agreement did not substantially lessen competition in the relevant market. It found that there were multiple rail operators in the market and that the agreement would not result in a significant reduction in competition. The court also found that the agreement would provide benefits to consumers, such as improved efficiency and reduced costs. The court concluded that the agreement was in the public interest and approved the agreement. The court made orders approving the agreement and setting out the terms and conditions of the approval.

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