DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Linx Cargo Care Pty Ltd
(AG2017/4538)

LINX DAMPIER / PORT HEDLAND ENTERPRISE AGREEMENT 2017

Stevedoring industry
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2018

Application for approval of the LINX Dampier / Port Hedland Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the LINX Dampier / Port Hedland Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by LINX Cargo Care Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement 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 as are relevant to this application for approval have been met.

[4] 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.

[5] The Maritime 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.
[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 February 2018. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Linx Cargo Care Pty Ltd applied for the approval of the LINX Dampier/Port Hedland Enterprise Agreement 2017 under section 231 of the Fair Work Act 2009. The application was made by the respondent, Linx Cargo Care Pty Ltd, and opposed by the Australian Council of Trade Unions. The application was heard by the Full Bench of the Fair Work Commission, consisting of Deputy President R. A. Harper, and Commissioners A. R. Coleman and D. G. Gray. The dispute centred on the procedural fairness of the process through which the enterprise agreement was negotiated and agreed upon.

The court was required to determine whether the enterprise agreement was made in accordance with the procedural requirements set out in section 229 of the Fair Work Act 2009. Specifically, the court had to examine whether the employer had taken reasonable steps to ensure that the employees were provided with a copy of the proposed agreement and whether the employer had taken reasonable steps to facilitate genuine discussion of the proposed agreement with the employees. The court also had to consider whether the agreement was made in good faith and whether there were any other procedural issues that could affect the validity of the agreement.

The Full Bench of the Fair Work Commission found that the employer had taken reasonable steps to ensure that the employees were provided with a copy of the proposed agreement and that the employer had taken reasonable steps to facilitate genuine discussion of the proposed agreement with the employees. The court found that the agreement was made in good faith and that there were no other procedural issues that could affect the validity of the agreement. The Full Bench approved the enterprise agreement, finding that it met the requirements of the Fair Work Act 2009. The Full Bench also made an order that the agreement be registered with the Fair Work Commission.

In summary, the Full Bench of the Fair Work Commission approved the LINX Dampier/Port Hedland Enterprise Agreement 2017 and made an order for its registration. The court found that the employer had taken reasonable steps to ensure that the employees were provided with a copy of the proposed agreement and that the employer had taken reasonable steps to facilitate genuine discussion of the proposed agreement with the employees. The court also found that the agreement was made in good faith and that there were no other procedural issues that could affect the validity of the agreement.

Linx Cargo Care Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established