Toll Holdings Limited T/A Toll

[2022] FWCA 836

[2022] FWCA 836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Toll Holdings Limited T/A Toll

(AG2022/40)

TOLL - TWU Enterprise Agreement 2021-2023

Road transport industry
COMMISSIONER WILSON	MELBOURNE, 9 MARCH 2022

Application for approval of the Toll - TWU Enterprise Agreement 2021 - 2023

1. An application has been made for approval of an enterprise agreement known as the Toll – TWU Enterprise Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Toll Holdings Limited T/A Toll. The Agreement is a single enterprise agreement.

1. In order for an agreement to be approved s.186(2)(d) requires the Commission to be satisfied that it passes the better off overall test (the BOOT), the requirements for which are set out in s.193.  The test requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement. The overall assessment involves a global comparison in relation to each award covered and prospective award covered employee; CFMEU v KAEFER Integrated Services Pty Ltd, [2017] FWCFB 5630, [9].

1. The Agreement is dense and complex with layers of incorporated documents.  Despite that fact and that the Agreement does not include a wages schedule I am satisfied the BOOT is nonetheless passed with me relying upon material within the Employer’s Declaration in support of the application (the Form F17) signed by Elizabeth Ferrier, the Applicant’s Employee and Industrial Relations Group Head, and dated 30 December 2021, and a statutory declaration and annexure signed by Elizabeth Ferrier and dated 7 March 2022.

1. The Form F17 is declared on the basis of its contents being accurate and that the giving of false or misleading information within it is a serious offence.  Ms Ferrier declares “yes” in response to Question 10 which asks if the Agreement contains any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the reference modern awards.  The statutory declaration dated 7 March 2022 is accompanied by an annexure marked A specifying the range of weekly payments that will be paid to employees on approval of the Enterprise Agreement.

1. I accept and rely upon Ms Ferrier’s declarations to the Commission as demonstrating that the wage rates paid by Toll under the Agreement are in every case appreciably higher than those payable under the reference modern awards. The undertaking sought by the Commission and provided by the Applicant which is now a term of the agreement pursuant to s.191 further confirms satisfaction that the BOOT is passed and that the Applicant’s commitments are enforceable. A copy of this undertaking is attached to this decision and marked Annexure A.

1. As a result of my consideration of the material before me I am  satisfied  that  each  of  the  requirements  of  ss.186,  187  and  188  as  are  relevant  to this application for approval have been met.

1. 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A