Toll Transport Pty Limited
[2023] FWCA 700
•3 MARCH 2023
| [2023] FWCA 700 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Toll Transport Pty Limited
(AG2023/301)
Toll (Brisbane Central DC) and UWU Enterprise Agreement 2022
| Road transport industry | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 MARCH 2023 |
Application for approval of the Toll (Brisbane Central DC) and UWU Enterprise Agreement 2022
An application has been made for approval of an enterprise agreement known as the Toll (Brisbane Central DC) and UWU Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Toll Transport Pty Limited (Employer). The Agreement is a single enterprise agreement.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
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.
I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:
(a) Clause 19.3.11 appears inconsistent with the NES as it provides that a casual employee must work continuously for 38 hours per week over 12 months to be eligible to convert. However, the NES provides that the employer must make an offer of casual conversion if the employee has been employed for a period of 12 months and worked a regular pattern of hours on an ongoing basis during at least the last 6 months.
(b) Clause 38 provides for an employee to be terminated due to abandonment of employment and notes that termination shall operate from the date of last attendance or last authorised absence, which may be inconsistent with s 117 of the Act.[1]
(c) Clause 41.5 provides that notice does not apply to apprentices, which may be inconsistent with s 123 of the Act.
The United Workers’ Union, 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.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 10 March 2023. The nominal expiry date of the Agreement is 31 October 2025.
DEPUTY PRESIDENT
Annexure A
[1]Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia[2017] FWCFB 38 and Construction, Forestry, Maritime, Mining and Energy Union v CPB Contractors Pty Limited[2018] FWCFB 5773
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