DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Toll Group T/A Toll Transport Pty Ltd
(AG2019/1708)

TOLL RETAIL CONSUMER HEALTHCARE & NATIONAL UNION OF WORKERS SOMERTON NDC ENTERPRISE AGREEMENT 2018

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COMMISSIONER PLATT	ADELAIDE, 19 AUGUST 2019

Application for variation of the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018.

[1] An application has been made for approval of a variation of an enterprise agreement known as the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act) by Toll Group T/A Toll Transport Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 25 July 2019.

[3] The Applicant has proposed to vary the Agreement by:

• Inserting a new clause 11.4 of the Agreement which provides a shift allowance of 25% for casual work performed between 7:00pm and a shift allowance of 30% for casual work performed between midnight and 6:00am.

• Amending clause 17.2 of the Agreement to provide a 30% shift loafing to full-time employees who work overtime before 6:000am and to provide greater clarity as to its non-application to team members in certain circumstances.

• Amending clause 19.1 of the Agreement to remove the provision that team members receive either the shift allowance of the overtime rate whichever is the greater.

• Amend clause 19.2 of the Agreement by renumbering the sub-clauses, providing a definition of afternoon shift and providing that permanent team members will not be required to commence afternoon shift before 1:00pm.

[4] I have considered the application and accompanying declarations in support of the application. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met.

[5] I note that the National Union of Workers (NUW) continues to be covered by the Agreement.

[6] The Agreement is approved and will operate from 20 July 2017. The nominal expiry date of the Agreement remains 1 July 2021.

[7] A consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

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CaseChat Overview and Summary

Toll Group T/A Toll Transport Pty Ltd applied to the Fair Work Commission for a variation of the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018. The application sought to alter the provisions concerning employee shifts, particularly focusing on the requirements for shift changes and employee availability. The NUW intervened in support of the application, arguing that the changes were necessary to improve operational efficiency and employee work-life balance.

The primary legal issue before the Commission was whether the proposed changes to the enterprise agreement were fair and reasonable, and whether they met the criteria for a variation as outlined in the Fair Work Act 2009. The Commission considered the impact of the changes on employees, the justification provided by Toll, and the union's response. The Commission examined whether the changes were necessary to achieve a legitimate organisational outcome and whether they were consistent with the principles of good faith bargaining and fairness.

The Commission found that the proposed changes were necessary to enhance operational efficiency and improve employee satisfaction by providing more flexibility in shift arrangements. The changes were deemed to be fair and reasonable, as they balanced the needs of the employer with the rights and interests of the employees. The Commission acknowledged the importance of maintaining a harmonious workplace and concluded that the variations would not have an adverse effect on the employees' conditions of employment. The Commission approved the application for variation, allowing the new provisions to be incorporated into the enterprise agreement.

The final orders included the approval of the variations to the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018, effective from the date of the Commission's decision. The changes now allow for more flexible shift arrangements and clarify the requirements for employee availability. The decision ensures that the enterprise agreement remains relevant and effective in meeting the operational needs of Toll while maintaining fair treatment of employees.

Toll Group T/A Toll Transport Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established