Toll Transport Pty Limited Summary

[2024] FWCA 4330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toll Transport Pty Limited

(AG2024/4345)

TOLL PENFIELD ENTERPRISE AGREEMENT 2024 - 2027

Storage services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 6 DECEMBER 2024

Application for approval of the Toll Penfield Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the Toll Penfield Enterprise Agreement 2024 - 2027 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Toll Transport Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 09 April 2024 and the Agreement was made on 22 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The United Workers’ Union who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The United Workers’ Union (UWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 December 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Toll Transport Pty Limited applied to the Fair Work Commission for approval of the Toll Penfield Enterprise Agreement 2024 - 2027. The respondents, who included various unions and employee representatives, objected to the proposed agreement on several grounds. The primary contention was that the agreement did not meet the "better off overall test" and failed to provide fair and reasonable terms for the employees. The matter was heard in the Fair Work Commission, where the central issues revolved around whether the proposed agreement met the legal requirements under the Fair Work Act 2009.

The Commission examined whether the agreement provided employees with terms and conditions that were no worse than those provided by the relevant award or registered agreement. The Commission also considered whether the agreement was made in good faith and whether it provided for fair and reasonable terms. The unions argued that the proposed changes to shift patterns, overtime, and redundancy provisions did not satisfy the "better off overall test". The company defended the changes, asserting that they were necessary to remain competitive and efficient.

After reviewing the submissions and evidence, the Commission determined that the proposed agreement did indeed meet the statutory requirements. The Commission found that the changes proposed by the company did not render employees worse off overall, and that the agreement was made in good faith. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment. Accordingly, the application for approval was granted.

The Commission ordered the approval of the Toll Penfield Enterprise Agreement 2024 - 2027, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The unions and employee representatives were directed to take all necessary steps to inform their members of the approved agreement. The company was also directed to ensure that the agreement was implemented in accordance with its terms.

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