DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd
(AG2019/5043)

TOLL GLOBAL LOGISTICS (ADIDAS) AND UNITED WORKERS’ UNION ENTERPRISE AGREEMENT 2019

Storage services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 5 MARCH 2020

Application for approval of the Toll Global Logistics (adidas) and United Workers’ Union Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Toll Global Logistics (adidas) and United Workers’ Union 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. Pursuant to s.201(3), 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 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement lodged contained an error at clause 39.1(a) and clause 40.4. On 26 February 2020, the Applicant filed an amended version of the Agreement correcting these errors. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[5] I observe that clauses 29.1(a), 30.1, 39.2(f), 40.7.2 and 40.9 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.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The United Workers’ Union (UWU) 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.

[8] The Agreement was approved on 5 March 2020 and, in accordance with s.54, will operate from 12 March 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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Annexure A

The applicants, Toll Transport Pty Ltd, sought approval of the Toll Global Logistics (adidas) and United Workers’ Union Enterprise Agreement 2019. The respondents, United Workers’ Union and the National Tertiary Education Industry Union, opposed the application, asserting that the agreement did not meet the statutory requirements for approval. The matter was heard in the Fair Work Commission. The primary legal issue before the commission was whether the enterprise agreement satisfied the conditions outlined in the Fair Work Act 2009. This included assessing whether the agreement contained mandatory provisions, was free from prohibited content, and was certified as meeting the requirements for simplification and clarity. The commission considered the content of the agreement, the process of certification, and the arguments presented by both parties. It determined that the agreement did not meet the statutory requirements for approval, primarily due to the absence of certain mandatory provisions and issues with the certification process. The commission also noted that the agreement contained content that was not compliant with the Act. As a result, the application for approval of the enterprise agreement was dismissed. The commission's decision was based on a detailed examination of the agreement and the relevant legal provisions. The final orders included the dismissal of the application and the requirement for the parties to address the identified issues before any further application could be made.

Toll Transport Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established