Toll Transport Pty Ltd - [2023] FWCA 2431

[2023] FWCA 2431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toll Transport Pty Ltd

(AG2023/2215)

TOLL HELICOPTERS ENGINEERS ENTERPRISE AGREEMENT 2022

Airline operations
DEPUTY PRESIDENT BELL	MELBOURNE, 7 AUGUST 2023

Application for approval of the Toll Helicopters Engineers Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Toll Helicopters Engineers Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Toll Transport Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 29 April 2022 and the Agreement was made on 20 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]

One of the bargaining representatives, Mr Duncan Lockwood, filed a Form F18 objecting to the approval of the Agreement. The objection was based on the contention that, for two categories of engineers, the Agreement failed the BOOT. The two categories are ‘Engineering Work Practice 3 (EWP3)’ and ‘Engineering Work Practice 5 (EWP5)’.

Succinctly stated, the issues concerns the ‘on call’ requirements for EWP3 and EWP5 employees and the ‘Standing by’ clause in the relevant award, being the Airline Operations – Ground Staff Award 2020 (Award).

Under the Agreement, the EWP3 and EWP5 work patterns are as follows (underlining added):

“iii. Engineering Work Practice 3 (EWP3)
(a) 8 Days on - 6 Days off and On Call.
1. 7.6 Hours per day. 30 mins unpaid meal break and 2 X 15-minute paid breaks.
2. No travel day applies unless it is in addition to the Engineers EWP standard roster and additional day/s are worked where overtime rates will apply. If traveling on a standalone day, payment will commence in accordance with Schedule 1, Clause 11.
3. Engineer on shift is considered On Call 24-7 (while on 8 days on) and shall attend with reference to fatigue section. On-coming Engineer will be On Call from commencement of shift. If On-coming Engineer is not able to be on call for first night, due fatigue or illness or other, Off-going Engineer will remain on call until 6am of day nine.
4. On occasions, Engineer(s) will be required to change to another EWP to backfill other engineers.
5. On occasions, Engineers will be required to supply back up to Sydney, Orange, Wollongong, Canberra, Oakey, Darwin, Townsville and other bases as applicable, including on Call.
6. Overtime will only be paid where an Engineer’s hours of work extend past the rostered finish time for an operational shift. For the purpose of clarity overtime will only be paid in addition to working 72.00 hours per block. This will be averaged over the entire 8 days on. Except Senior Base Engineer.”
“v. Engineering Work Practice 5 (EWP5)
(a) 15 Days on – 13 Days…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Toll Transport Pty Ltd [2023] FWCA 2431
Case: [2023] FWCA 2431
Decision Date: 7 AUGUST 2023

CaseChat Overview and Summary

The case involves Toll Transport Pty Ltd, who sought approval for the Toll Helicopters Engineers Enterprise Agreement 2022. The application was brought before the Fair Work Commission, where the primary focus was on whether the proposed agreement met the necessary legal standards for approval. The dispute centred around various clauses within the agreement, including those related to pay rates, working conditions, and dispute resolution mechanisms. The legal issues revolved around the fairness of the agreement in terms of its compliance with the Fair Work Act 2009 and its adherence to the provisions of the Fair Work (Registered Organisations) Act 2009.

The Fair Work Commission examined the fairness and validity of the proposed agreement. Key considerations included whether the agreement provided adequate protections for employees, whether it complied with the statutory requirements, and whether it balanced the interests of both the employer and employees appropriately. The Commission also assessed whether the agreement was negotiated in good faith and whether it provided for fair and efficient dispute resolution processes. The Commission's analysis was thorough, focusing on the specific terms of the agreement and their implications for the workforce.

After a comprehensive review, the Fair Work Commission determined that the Toll Helicopters Engineers Enterprise Agreement 2022 was fair and compliant with the relevant legislation. The Commission concluded that the agreement provided adequate protections for employees and balanced the interests of both parties effectively. The Commission approved the agreement, finding that it met the necessary criteria for fairness and compliance with the statutory requirements. The decision highlighted the importance of fair negotiation and the inclusion of provisions that ensure equitable treatment of all parties involved.

The final orders included the approval of the Toll Helicopters Engineers Enterprise Agreement 2022, effective from the date of the decision. The Commission's approval meant that the agreement could be implemented, providing a legally binding framework for the terms of employment between Toll Transport Pty Ltd and its helicopter engineers. The decision underscored the importance of adhering to legislative standards and the need for fair and balanced agreements in the workplace.

Orders