Toll Transport Pty Limited

[2023] FWCA 1999

[2023] FWCA 1999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Toll Transport Pty Limited

(AG2023/1819)

TOLL GLOBAL LOGISTICS HEALTHCARE NSW ENTERPRISE AGREEMENT 2022

Storage Services
COMMISSIONER PLATT	ADELAIDE, 3 JULY 2023

Application for approval of the Toll Global Logistics Healthcare NSW Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Toll Global Logistics Healthcare NSW Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Toll Transport Pty Limited (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 16 June 2023.

1. On 20 June 2023, I corresponded with the Applicant and the Bargaining Representatives to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. In respect of the Notice of Employee Representational Rights (NERR) issue, it appears that the NERR was provided to employees on different dates, ranging from 21 September 2022 to 4 October 2022, depending on who was present and working that day. Whilst this method of distributing the NERR results in some employees receiving it more than 14 days after notification time, I do not believe that this has the effect of disenfranchising any employee who is covered by the proposed Agreement from participating in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. The Applicant has submitted an undertaking in the required form dated 23 June 2023. The undertaking deals with the following topics:

·   The shift worker definition in Clause 24.2 of the Storage Services and Wholesale Award 2020 (the Award) shall apply to persons covered by the Agreement for the purposes of the NES and s.87(1)(b) of the Act.

·   Clause 39 of the Agreement shall operate consistent with Sections 117-123 of the Act.

·   Clause 35 of the Agreement will operate consistent with s.115(3) of the Act, requiring agreement to substitute public holidays to be between the employer and the individual employee.

·   Clause 41 of the Agreement will not operate to reduce an employee’s entitlement to a severance payment where an order pursuant to s.120 of the Act is required.

·   Clause 4.1.2 of the Agreement will apply only in respect of wages owed to an employee.

·   The 25% casual loading provided in Clause 19 of the Agreement will be applied to the Training Team Member/Casual classification rate set out in Clause 20.

1. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 November 2026.

COMMISSIONER

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