LINX Cargo Care Pty Ltd T/A LINX Cargo Care

[2024] FWCA 4664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

LINX Cargo Care Pty Ltd T/A LINX Cargo Care

(AG2024/4775)

LINX PORT KEMBLA ENTERPRISE AGREEMENT 2025

Stevedoring industry
COMMISSIONER REDFORD	MELBOURNE, 24 DECEMBER 2024

Application for approval of the LINX Port Kembla Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the LINX Port Kembla 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 T/A Linx Cargo Care (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:

a.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

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved LINX Cargo Care Pty Ltd, trading as LINX Cargo Care, and the Australian Services Union. The dispute centred on the application for the approval of the LINX Port Kembla Enterprise Agreement 2025, which was a proposed collective agreement between the employer and its employees. The application was brought under the Fair Work Act 2009, which mandates the approval of certain enterprise agreements by the Fair Work Commission.

The key legal issues the Commission needed to resolve were whether the agreement met the requirements for approval under the Fair Work Act and whether it had been genuinely negotiated between the parties. Specific points of contention included the agreement's provisions on minimum rates of pay, penalty rates, and the classification of employees, as well as the procedures followed in reaching the agreement. Additionally, the Commission had to consider the views of the relevant employee representatives and ensure the agreement did not contravene any existing awards or registered agreements.

In examining the evidence and submissions, the Commission found that the agreement had been genuinely negotiated and was in line with the legislative requirements. The provisions on pay rates and employee classification were deemed fair and reasonable, and the procedures followed were satisfactory. The views of the employee representatives were considered, and no adverse findings were made against any party. Consequently, the Commission approved the agreement, determining that it met all necessary criteria for endorsement.

As a result of the decision, the Fair Work Commission granted approval for the LINX Port Kembla Enterprise Agreement 2025 to be registered, effective from the date specified in the agreement. This decision provided certainty to the parties involved and established the terms and conditions of employment for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established