Toll Transport Pty Limited
[2024] FWCA 789
•1 MARCH 2024
| [2024] FWCA 789 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Toll Transport Pty Limited
(AG2023/5508)
TOLL GLOBAL LOGISTICS (PRESTONS) ENTERPRISE AGREEMENT 2023
| Road transport industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 1 MARCH 2024 |
Application for approval of the Toll Global Logistics (Prestons) Enterprise Agreement 2023
Introduction
Toll Transport Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Toll Global Logistics (Prestons) Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
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. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 14 April 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 14 December 2023 the better off overall test requirements in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.
National Employment Standards (NES) precedence term
Clause 35.4 of the Agreement provides that “by agreement between Toll and Team Members, other days may be substituted for a public holiday to allow for the efficient operation of Toll’s business.” This clause is not consistent with the NES, in that at s.115(3) of the Act, an employer and an individual employee may agree on the substitution of a day or part-day of a public holiday [emphasis added]. Clause 42.2 of the Agreement provides for the withholding of monies owed to an employer by an employee at the termination of their employment, the effect of which does not constrain the ability of the employer to withhold monies owing to the employee under the NES and may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act. Further, clause 28.5 of the Agreement provides that annual leave accrued after 1 July 2020 will attract a further payment of 17.5% loading (calculated referable to the base hourly rate), or the penalty or shift penalty rates payments that would have been paid had an employee worked their ordinary hours, whichever is greater. However, clause 28.6 of the Agreement provides that at termination of employment, accrued annual leave will be paid out only at the relevant base rate, which is inconsistent with the NES entitlement at s.90(2) of the Act, requiring that an employee must be paid in respect of untaken annual leave at the termination of their employment as though they had taken that period of leave.
I note that in accordance with the NES precedence term at clause 8.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.
Section 190 Undertakings
The employer 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.
Section 186, 187, 188 and 190
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.
Section 183 Bargaining Representatives
The Transport Workers’ Union (TWU), 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 TWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 March 2024. The nominal expiry date of the Agreement is 30 June 2026.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE523709 PR771999>
ANNEXURE A
0
0
0