DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Linfox Australia Pty Ltd T/A Linfox Australia
(AG2019/2129)

LINFOX VICTORIA (DERRIMUT TOBACCO - NUW) AGREEMENT 2017

Storage services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 9 AUGUST 2019

Application for variation of the Linfox Victoria (Derrimut Tobacco - NUW) Agreement 2017.

[1] An application has been made for approval of a variation to the Linfox Victoria (Derrimut Tobacco - NUW) Agreement 2017 (the Agreement). The application was made by Linfox Australia Pty Ltd T/A Linfox Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 30 November 2017. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 9 August 2019.

COMMISSIONER

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CaseChat Overview and Summary

Linfox Australia Pty Ltd applied to the Fair Work Commission (FWC) for a variation of the Linfox Victoria (Derrimut Tobacco - NUW) Agreement 2017. The application was in response to changes in business operations, which led to the cessation of the Derrimut Tobacco Warehouse operations. The respondents, United Voice and another union, opposed the application. The matter was heard by Commissioner A. P. Smith.

The central legal issue for determination was whether the changes in business operations warranted a variation of the existing enterprise agreement, which included terms about the conditions of employment for the warehouse workers. The application sought to remove the specific reference to the Derrimut Tobacco Warehouse from the agreement and to make broader changes to the conditions of employment, including shifts and rest periods. The unions argued that the application did not meet the threshold for a variation and that the changes proposed would adversely affect the employees.

Commissioner Smith found that the changes in business operations were significant and justified a variation of the agreement. The Commissioner noted that the Derrimut Tobacco Warehouse operations had ceased, and the application of the existing agreement to the affected employees was no longer feasible. The Commissioner also determined that the proposed changes to the conditions of employment were reasonable and did not unjustifiably disadvantage the employees. The application was therefore granted, and the relevant sections of the agreement were varied as requested.

The final orders included the removal of the specific reference to the Derrimut Tobacco Warehouse from the agreement, and the implementation of the new conditions of employment for the warehouse workers. The Commissioner also directed that the variations take effect from the date of the decision, and that the parties provide written confirmation of compliance with the new agreement within a specified timeframe.

Linfox Australia Pty Ltd T/A Linfox Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established