Toll Transport Pty Limited T/A Toll Global Logistics

[2021] FWCA 1051

[2021] FWCA 1051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Limited T/A Toll Global Logistics
(AG2020/3916)

TOLL GLOBAL LOGISTIC (INTERCHANGE) & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 26 FEBRUARY 2021

Application for approval of the Toll Global Logistics (Interchange) & United Workers Union Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Toll Global Logistics (Interchange) & United Workers Union Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Toll Transport Pty Limited T/A Toll Global Logistics (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 February 2021.

[3] On 16 February 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making this application to 15 December 2020.

[5] The Applicant has submitted an undertaking in the required form dated 23 February 2021. The undertaking (whilst imprecisely drafted) deals with the following topics:

•  In relation to clause 16.2(iii) of the Agreement, an employee may be summarily terminated or suspended with pay leading to termination, if necessary. It should be noted that the undertaking cannot be relied upon to remedy any dismissal which is in breach of the Act.

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

•  In relation to clause 28.6 of the Agreement, when an employee ends their employment with the Applicant, the employee will be paid for any period of untaken annual leave in accordance with the Act.

•  In relation to clause 35.3 of the Agreement, the Applicant and an employee may agree to the substitution of a day or part day that would otherwise be a prescribed public holiday.

•  In relation to clause 29.1.4 of the Agreement, an employee must notify their manager on duty of their inability to attend for duty as soon as practical. Noting the insertion of the NES precedence clause will not prevent the employee advising of their inability to attend for work at a time after the leave has started.

•  In relation to clause 38 of the Agreement, if an employee has abandoned their employment prior to the end of the notice period, they will be entitled to payment for all time actually worked up until the time of the termination. This clause is also remedied by the NES precedence clause. Noting that there has been previous consideration by the Commission of abandonment of employment deeming provisions and the clause may not operate in all circumstances.

•  In relation to clause 40.2(f) of the Agreement, if the Applicant obtains suitable employment for the employee, the Applicant may make an application to the Commission to vary the redundancy pay.

•  Clause 41.2.2 of the Agreement is remedied by the NES precedence clause in that an employee who has failed to give notice will still be entitled to untaken paid annual leave.

•  Clause 19.2.11 of the Agreement is deleted.

•  In relation to subclauses 25(1)(a) and (d), all time in excess of 38 hours in any weekly rostered working cycle, or in excess of ordinary rostered hours in any one day worked by a permanent or casual employee, will be paid at the rate of time and a half for the first two hours and double time thereafter.

•  In relation to clause 23.3 of the Agreement, ordinary hours of work will be an average of 38 hours per week.

•  In relation to clauses 19.2.4 and 19.2.11, part time employees may work additional hours in excess of the agreed minimum hours of no more than 38 hours per week. Overtime payments will apply when working hours in excess of the daily rostered hours.

[6] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[7] 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.

[8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[9] 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.

[10] 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.

[11] 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 31 June 2021.

COMMISSIONER

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