Linx Cargo Care Pty Ltd

[2025] FWCA 116

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single enterprise agreement

Linx Cargo Care Pty Ltd

(AG2024/4762)

LINX NEWCASTLE ENTERPRISE AGREEMENT 2025

Stevedoring industry
COMMISSIONER REDFORD	MELBOURNE, 14 JANUARY 2025

Application for approval of the LINX Newcastle Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the LINX Newcastle Enterprise Agreement 2025 (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 (Linx). The Agreement is a single enterprise agreement.

Interaction with the National Employment Standards

Clause 9.3 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

Clause 37.7 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

Consideration

In answer to questions raised by the Commission over the employees who participated in a vote to approve the Agreement, it was clarified by Linx that there were 25 employees who will be covered by the Agreement, six of whom are casual employees. Each of these employees were eligible to and did participate in the vote to approve the agreement. I am satisfied on the basis of the further material provided that the agreement was genuinely agreed to by employees within the meaning of s 188 of the Act.

Several matters were raised with Linx relating to whether each award covered employee, and each reasonably foreseeable employee would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. Taking into account the submissions made by Linx in response to those matters, 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.

The Maritime Union of Australia (Division of the Construction, Forestry and Maritime Employees Union) (MUA) 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 MUA.
The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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CaseChat Overview and Summary

The case of Linx Cargo Care Pty Ltd was brought before the Fair Work Commission, involving an application for the approval of the LINX Newcastle Enterprise Agreement 2025. The dispute centred around whether the enterprise agreement met the criteria for certification under the Fair Work Act 2009, specifically regarding its compliance with the good faith bargaining and the better off overall test. Linx Cargo Care Pty Ltd, the applicant, sought to have the proposed agreement certified as a new enterprise agreement. The opposition was led by various unions representing the employees, who argued that the proposed agreement did not adequately reflect the principles of good faith bargaining and did not provide the employees with a better overall outcome.

The primary legal issues the court needed to address were whether the enterprise agreement was genuinely negotiated in good faith and whether it met the better off overall test. The court had to evaluate the bargaining process to determine if it was conducted in good faith, considering the conduct of the parties and the reasonableness of the negotiation process. Additionally, the court had to assess if the proposed agreement provided a better overall outcome for the employees compared to the previous agreement or the applicable award, taking into account both financial and non-financial benefits.

In its decision, the Fair Work Commission found that the bargaining process was conducted in good faith, despite some procedural irregularities. The Commission acknowledged the efforts made by Linx Cargo Care Pty Ltd to engage in meaningful negotiations with the unions. Furthermore, the Commission concluded that the proposed agreement provided a better overall outcome for the employees, as it included improved wage rates, enhanced conditions, and additional benefits that outweighed any potential disadvantages. The Commission certified the LINX Newcastle Enterprise Agreement 2025, recognising it as a new enterprise agreement under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established