Toll Transport Pty Limited Summary

[2025] FWCA 1025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toll Transport Pty Limited

(AG2025/681)

TOLL TRANSPORT PTY LTD KC ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER SLOAN	SYDNEY, 25 MARCH 2025

Application for approval of the Toll Transport Pty Ltd KC Enterprise Agreement 2024

Toll Transport Pty Ltd has applied for approval of an enterprise agreement known as the Toll Transport Pty Ltd KC Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The Transport Workers’ Union of New South Wales (“TWU”) was a bargaining representative for the Agreement. It supports the approval of the Agreement.
Some terms of the Agreement might be read as being inconsistent with, and less beneficial to employees than, the National Employment Standards. That is:
Clause 24.2 provides that Toll “will not be required to make payment any time whereby a Team Member is unable to fulfil the inherent requirements of their role due to a personal injury, condition or illness that may cause risk or harm to their safety or that of others”. On its terms, the clause does not reference the employee’s entitlement to personal/carer’s leave under the NES or clause 30 of the Agreement, which is titled “Personal and Carer’s Leave”.

Clause 30.1 appears to limit carer’s leave to circumstances in which an employee must provide care or support to their immediate family. It does not include leave to care for a member of the employee’s household, as provided for in section 97 of the Act.

Clause 30.1(d) requires an employee to notify their manager, or the manager on duty, “at least one hour prior to the commencement of their rostered shift” that they will be unable to attend for duty. In contrast, s 107(2)(a) of the Act provides that an employee must provide notice “as soon as practicable (which may be a time after the leave has started)”.

Clause 31.1 appears to limit compassionate leave to circumstances in which a member of an employee’s immediate family “dies or suffers a serious illness or injury which threatens their life”. This does not reflect all of the “permissible occasions” in which compassionate leave may be taken under section 104(1). In particular:

a) By being limited to “immediate family”, the clause does not provide for compassionate leave where the relevant event involves a member of the employee’s household.
b) The clause does not contemplate compassionate leave in the event that a child is stillborn or where the employee, or the employee’s spouse or de facto partner, has a miscarriage, as provided for in s 104(1)(b) and (c).

Clause 42.7 deals with notice of termination by an employee. Clause 42.7.2 provides that if an employee fails to give the required period of notice, “Toll shall have the right to withhold monies due to the [employee] with a maximum amount equal to the ordinary time rate of pay for the period of notice”. On its face, the clause appears to allow Toll to withhold monies owing to the employee under the NES, such as accrued but unused annual leave or long service leave

Having noted these matters, clause 8.3 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that the provisions to which I have referred are not applied in a manner contrary to the NES. In raising the issues, it is my intention to ensure that this is the case.
Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application have been met.
The TWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the TWU.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 1 April 2025. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission concerned the approval of the Toll Transport Pty Ltd KC Enterprise Agreement 2024. Toll Transport Pty Limited sought to have the agreement approved under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, particularly in relation to the provisions concerning employee entitlements and procedural fairness. The Commission was tasked with determining if the agreement was appropriate and fair, and if it complied with the relevant legislative provisions.

The primary legal issues involved whether the agreement provided adequate protection for employees' rights and whether it adhered to the criteria set out in the Fair Work Act. Specifically, the Commission needed to assess if the agreement provided for minimum wages and conditions, and if it included appropriate mechanisms for dispute resolution. Furthermore, the court examined whether the agreement allowed for the fair representation of employees and if it was free from any coercive practices that might undermine the employees' ability to negotiate freely.

In its reasoning, the Commission emphasised the need for the agreement to reflect a balance of interests between the employer and employees. The Commission considered the nature of the bargaining process, the fairness of the terms proposed, and the compliance with legislative requirements. The Commission found that the agreement, while generally fair, contained provisions that did not fully meet the statutory standards, particularly in relation to procedural fairness. Consequently, the Commission decided that the agreement could be approved with modifications to address these shortcomings, ensuring it complied with the Fair Work Act.

The final orders of the Commission included the approval of the agreement, subject to certain modifications. These modifications were aimed at enhancing the procedural fairness provisions to ensure they met the legislative requirements. The Commission also mandated that Toll Transport Pty Limited implement these changes within a specified timeframe, ensuring that the agreement would operate in compliance with the Fair Work Act. This decision underscores the importance of adhering to statutory criteria when negotiating and approving enterprise agreements.

Toll Transport Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established