Transport Workers' Union of Australia v Linfox Australia Pty Ltd T/A Linfox

[2021] FWC 6387

[2021] FWC 6387

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transport Workers' Union of Australia
v
Linfox Australia Pty Ltd T/A Linfox
(C2021/858)

LINFOX AND TRANSPORT WORKERS UNION ROAD TRANSPORT AND DISTRIBUTION CENTRES AGREEMENT 2018
[AE429372]

COMMISSIONER HAMPTON ADELAIDE, 19 NOVEMBER 2021

Dispute about any matters arising under an enterprise agreement – confirmation of agreed resolution of this application and future process to deal with the underlying dispute.

[1] The Transport Workers’ Union of Australia (TWU) made this application under s.739 of the Fair Work Act 2009 (Act) on 18 February 2021. The dispute concerns, amongst other matters, the terms and import of a Local Matters Agreement made under clause 34 of the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 (2018 Agreement). The respondent to this matter, and the employer covered by the 2018 Agreement, is Linfox Australia Pty Ltd (Linfox).

[2] This application was subject to a conference of the parties before the Commission as presently constituted on 3 March 2021. The matter was adjourned pending the determination of a similar matter (C2019/5482) that was already on foot before Commissioner Cambridge (2019 dispute). This occurred by agreement between the parties on the basis that the 2019 dispute concerned the same enterprise agreement, the outcome of those proceedings would directly inform the resolution of this matter, and the arbitration of the earlier matter was already programmed.

[3] A decision 1 in the 2019 dispute was published by the Commission on 8 October 2021. I have now been informed that both parties in that matter have lodged appeals which are due to be heard by a Full Bench of the Commission in February 2022. In that light, and noting that the TWU initially sought that this matter be further adjourned pending the outcome of the appeal process, I have conducted a further report back conference today.

[4] At the outset of the conference, I proposed a basis to resolve this application having regard to the 2019 dispute and the fact that whilst there are factual differences associated with the details of the particular Local Matter Agreement in dispute, the agreement construction issues that would be determined by the Full Bench would largely resolve this dispute. Further, I was alert to the potential that the 2019 dispute could be subject to judicial review and that this would lead to a further delay in this matter.

[5] The TWU and Linfox have now agreed to resolve this matter on the basis proposed by the Commission. In that light, I indicated that I would issue this Statement confirming the terms of the resolution as follows:

1. The final outcome of the 2019 dispute will determine the proper application of the 2018 Agreement for the purposes of this dispute.

2. The parties will meet as soon as possible after the final outcome of the 2019 dispute is known (noting the potential for judicial review) to discuss the resolution of this dispute.

3. The parties will resolve this dispute in terms that are consistent with the final outcome of the 2019 dispute.

4. In the event that the parties cannot agree on the precise settlement terms, either party may make a fresh s.739 application to deal with this dispute relying upon the history of this present application (C2021/858).

[6] I consider that this is an appropriate resolution to this application, and that the parties will be able to constructively resolve the underlying dispute when the final outcome of 2019 dispute is confirmed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE429372  PR735949>

 1   [2021] FWC 6009