Linx Cargo Care Pty Ltd

[2023] FWCA 2468

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Linx Cargo Care Pty Ltd

(AG2023/2233)

LINX NEWCASTLE EAST BASIN ENTERPRISE AGREEMENT 2023

Road transport industry
COMMISSIONER MATHESON	SYDNEY, 8 AUGUST 2023

Application for approval of the LINX Newcastle East Basin Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the LINX Newcastle East Basin Enterprise Agreement 2023 (Agreement). The application was made by Linx Cargo Care Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 August 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Linx Cargo Care Pty Ltd applied to the Fair Work Commission for approval of the LINX Newcastle East Basin Enterprise Agreement 2023. The applicants sought to have the agreement registered as a modern award under the Fair Work Act 2009. The application was opposed by the Maritime Union of Australia. The dispute centred around whether the agreement met the statutory requirements for modern awards, particularly in relation to minimum pay rates, penalty rates, leave provisions, and other conditions of employment.

The central legal issue was whether the agreement provided terms and conditions that were at least equal to or better than the relevant modern award. The Fair Work Commission needed to assess if the agreement contained provisions that adequately covered all the requirements set out in the Fair Work Act. This involved a detailed comparison of the proposed agreement against the applicable modern award to ensure compliance and to determine if the agreement provided for fair and reasonable terms of employment.

The Fair Work Commission found that the LINX Newcastle East Basin Enterprise Agreement 2023 provided for terms and conditions that were at least as good as, if not better than, those in the relevant modern award. The agreement included provisions for pay rates, penalty rates, leave entitlements, and other employment conditions that met or exceeded the statutory minimums. After careful consideration and review, the Commission approved the agreement and ordered that it be registered as a modern award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established