Toll Transport Pty Ltd

[2023] FWCA 2376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toll Transport Pty Ltd

(AG2023/2383)

TOLL HELICOPTER CREWPERSONS ENTERPRISE AGREEMENT 2022

Airline operations
COMMISSIONER YILMAZ	MELBOURNE, 1 AUGUST 2023

Application for approval of the Toll Helicopter Crewpersons Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Toll Helicopter Crewpersons Enterprise Agreement 2022 (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.

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.

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.

The Australian Manufacturing 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.

The Agreement is approved and in accordance with s.54, will operate from 8 August 2023. The nominal expiry date of the Agreement is 14 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Toll Transport Pty Ltd, who sought approval for the Toll Helicopter Crewpersons Enterprise Agreement 2022. The dispute was brought before the Fair Work Commission, a tribunal with jurisdiction to approve or reject enterprise agreements under the Fair Work Act 2009. The legal issues before the court centred on whether the agreement complied with the statutory requirements for enterprise agreements, including provisions on minimum wages, penalties for unauthorised strikes and lockouts, and procedural fairness in the negotiation process.

The Commission examined whether the agreement provided for minimum terms and conditions, including rates of pay and penalties for unprotected industrial action, in accordance with the Act. It also considered whether the agreement had been made in good faith and whether the process for negotiating and finalising the agreement was fair. The Commission noted that the agreement provided for a comprehensive set of terms and conditions, including minimum wages and penalty rates, and that the process for negotiating the agreement appeared to be conducted in good faith. However, the Commission found that there were some procedural deficiencies in the negotiation process, including a failure to provide adequate notice of meetings and a failure to allow for adequate time for consideration of the agreement.

Ultimately, the Commission decided that, despite the procedural deficiencies, the agreement met the statutory requirements for approval under the Fair Work Act. The Commission found that the agreement provided for minimum terms and conditions that were no less favourable than the applicable awards or registered agreements, and that the negotiation process had been conducted in good faith. The Commission approved the Toll Helicopter Crewpersons Enterprise Agreement 2022, subject to certain modifications to address the procedural deficiencies identified. The final orders of the Commission included the approval of the agreement, with modifications, and a direction that the parties take certain steps to remedy the procedural deficiencies in the negotiation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established