Toll Transport Pty Ltd

[2020] FWCA 78

[2020] FWCA 78

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd
(AG2019/4750)

TOLL MINING SERVICES (OLYMPIC DAM OPERATIONS) ENTERPRISE AGREEMENT 2019

Mining industry
COMMISSIONER PLATT	ADELAIDE, 7 JANUARY 2020

Application for approval of the Toll Mining Services (Olympic Dam Operations) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Toll Mining Services (Olympic Dam Operations) Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Toll Transport Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 16 December 2019.

[3] On 18 December 2019, 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 Applicant has submitted an undertaking in the required form dated 23 December 2019. The undertaking deals with the following topics:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  Clause 10.6 of the Agreement will not operate in a manner inconsistent with s.117 of the Act.

•  Clause 10.7 of the Agreement will not operate in a manner inconsistent with s.324 of the Act.

•  Clause 11.3 of the Agreement will not operate in a manner inconsistent with s.119 of the Act.

•  Clause 12.1 of the Agreement will not operate unless consistent with an order made by the Fair Work Commission under s.120 of the Act.

•  In respect of better off overall issues relating to all casual employees, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery. 1

[5] An issue arose with respect to the nominated bargaining representatives. The Form F16 Application advised that the AMWU and Mr Brock, Mr Andrew and Mr Dow were appointed bargaining representatives. After the conference, the AMWU advised that there were additional bargaining representatives. As a result, I sought copies of the instruments which appointed the bargaining representatives. I was provided with a document dated 19 March 2019 which stated that the ‘Transport Team’ nominated Mr Andrew, Mr Dow and Mr Brock as representatives and was signed by a single person. In my view the instrument of appointment does not appear to meet the requirements of s.176(1)(c) of the Act in so far as the use of the term ‘Transport Team’ does not identify the employee(s) who nominated the representative. A Mr Paynter also telephoned my Chambers and advised he was a bargaining representative. No instrument of appointment was provided in respect of Mr Paynter. It appears to me that the only bargaining representative is the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[6] A copy of the undertaking has been provided to the bargaining representatives (including purported representatives) 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.

[7] In addition, I sought the views of all employees as to the proposed undertakings. No views were expressed.

[8] 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.

[9] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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 from the date of approval of the Agreement. The nominal expiry date is 1 July 2022.

COMMISSIONER

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 1   [2017] FWCFB 1664