Application for approval of the Linfox and UWU (Retail and FMCG) National Distribution Centres Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Linfox and UWU (Retail and FMCG) National Distribution Centres 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 Linfox Australia Pty Ltd (Linfox). The Agreement is a single enterprise agreement.

[2] Several issues were raised with Linfox about the application, in response to which further submissions and some undertakings were provided. A copy of the undertakings provided are attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The views of the United Workers' Union (UWU), a bargaining representative for the Agreement, were sought pursuant to s 190(4) of the Act and there was no objection to the undertakings. The undertakings, which are referred to in more detail below, are taken to be a term of the agreement.

[3] One of the issues raised was about the coverage of the agreement. It has been clarified that the agreement is intended apply to two broad categories of employees. The first category are employees who perform work within a classification as defined, at one of the work-sites listed in Appendix 3 of the agreement, in respect of whom several conditions of employment operate by reference to an earlier instrument such as a previous enterprise agreement. The second category are employees who perform work within a classification as defined in the agreement at a "new" retail or "fast moving customer goods" warehouse owned or operated by Linfox. To avoid any doubt, an undertaking was provided to this effect.

[4] The agreement incorporates by reference parts of several instruments which are referred to in it. The manner in which those instruments are incorporated by reference is either to incorporate all terms of the named instruments except where particular clauses are specifically excluded, or to incorporate only specific clauses as expressly referred to. To avoid any doubt in relation to this latter category, an undertaking was provided providing that in relation to certain instruments, only clause numbers that are specifically referred to are incorporated by reference.

Interaction with the National Employment Standards

[5] Linfox also provided an undertaking in relation to the interaction between the Agreement and the NES - the NES precedence undertaking. This undertaking provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of any inconsistency.  On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Clause 50 - Abandonment of employment

[6] For employees covered by the agreement working at one of the work sites listed in Appendix 3 of the agreement, the rates of pay and some allowances are not set out in the agreement itself, but in document called "Schedule 1" which is made operative as an "enforceable term" of the agreement. It was provided to employees who were asked to vote on the agreement and also provided to the Commission as part of the application.

[7] It appears to me that the document called "Schedule 1" is a part of the agreement and should therefore be published in accordance with s 601(4)(b) of the Act. Even if this were not the case, the Commission is required to perform its functions and exercise its powers in a manner that is open and transparent[1]. Consistent with several decisions of the Commission in similar matters[2], I raised these issues with Linfox who agreed that Schedule 1 be published along with the agreement. The Schedule is attached in Annexure B.

[8] Linfox submitted that employees covered by the agreement would otherwise be covered by the Road Transport and Distribution Award 2020 (RTD Award) and not the Storage Services and Wholesale Award 2020 (SSW Award), making particular reference to clause 4.3(b) of the SSW Award. UWU did not appear to cavil with these submissions. I accept those submissions and consider that the RTD Award is the relevant modern award for the purposes of the application of the BOOT test with regard to the application.

[9] 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.

[10] The UWU, 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 UWU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[1] Fair Work Act 2009 s 577(1)(c)

[2] Application by Australian Postal Corporation t/a Australia Post [2024] FWCA 3425; see also Application by VIP Plastic Packaging Pty Ltd [2023] FWCFB 161; AWU v Oji Foodservices Packaging Solutions Pty Ltd [2018] FWCFB 7501

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