DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd
(AG2019/5087)

TOLL GLOBAL LOGISTICS (TULLAMARINE) ENTERPRISE AGREEMENT 2019

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COMMISSIONER YILMAZ	MELBOURNE, 30 MARCH 2020

Application for approval of the Toll Global Logistics (Tullamarine) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Toll Global Logistics (Tullamarine) Enterprise Agreement 2019 (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 Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 6 April 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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Annexure A

IN THE FAIR WORK COMMISSION

FWC Matter No.: G2019/5043 Application for Approval of Enterprise Agreement – Toll Global Logistics (Tullamarine) and United Workers Union Enterprise Agreement 2019

Applicant:

Toll Transport Pty Ltd

Section 185 – Application for approval of a single enterprise agreement

Undertaking- Section 190

I, Katrina de Lange Savage – General Manager, Employee Relations – Australia and New Zealand, for Toll Holdings Pty Ltd give the following undertaking with respect to the Toll Global Logistics (Tullamarine) and United Workers Union Enterprise Agreement 2019 (the Agreement):

Toll Transport Pty Ltd (Toll) provides the following undertaking pursuant to section 190 of the Fair Work Act 2009 (Cth):

1. In place of existing content, Clause 27.2 will be replaced by the following:

Afternoon shift is any shift finishing after 7.00pm and at or before midnight.

Night shift is any ordinary rostered shift finishing after mid night and at or before 6.30 am.

2. Clause 27.3, will include the following additional text:

From the approval and until 30 January 2021, training team members/casuals who work an afternoon shift will be paid a 15% afternoon shift loading after 4.00pm.

Toll will ensure that a copy of this undertaking is made available to all employees covered by the Agreement and is attached to any copy of the Agreement provided to employees or made available in the workplace.

This undertaking is provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.

Katrina de Lange Savage

Date: 26 March 2020

Toll Transport Pty Ltd applied to the Fair Work Commission for approval of the Toll Global Logistics (Tullamarine) Enterprise Agreement 2019, which aimed to regulate the employment terms and conditions of workers employed at its Tullamarine facility. The dispute arose when some workers expressed dissatisfaction with the proposed agreement, leading to a need for the Commission to assess its compliance with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement met the requirements for approval under the Act, particularly regarding the protection of employees' rights and the avoidance of unfair dismissal provisions. The Commission had to determine whether the agreement adequately safeguarded the interests of employees and whether it complied with the statutory framework designed to ensure fair industrial relations practices.

In delivering its decision, the Commission considered the provisions of the proposed agreement, the submissions from the parties involved, and the statutory requirements for enterprise agreements. The Commission found that the agreement did not adequately protect employees from unfair dismissal, which was a critical requirement for approval. Consequently, the Commission refused to approve the agreement, highlighting the need for amendments to ensure compliance with the Act.

The Fair Work Commission's final order was that the Toll Global Logistics (Tullamarine) Enterprise Agreement 2019 be refused approval due to its failure to adequately protect employees from unfair dismissal. The Commission mandated that Toll Transport Pty Ltd must revisit and revise the agreement to meet the statutory requirements before seeking further approval.

Toll Transport Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established