Toll Transport Pty Ltd Summary

[2022] FWCA 2256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toll Transport Pty Ltd

(AG2022/1958)

Toll Global Logistics (Healthcare) Enterprise Agreement 2020

Storage services
COMMISSIONER LEE	MELBOURNE, 7 JULY 2022

Application for approval of the Toll Global Logistics (Healthcare) Enterprise Agreement 2020

An application has been made for approval of an enterprise agreement known as the Toll Global Logistics (Healthcare) Enterprise Agreement 2020 (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 as are relevant to this application for approval have been met.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 28.6.3 – Annual Leave.
·   Clause 29.1.4 – Personal and Carer’s Leave.
·   Cause 34.3 – Public Holidays.
·   Clause 41.5 – Termination of Employment.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 July 2022. The nominal expiry date of the Agreement is 31 October 2023.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

Toll Transport Pty Ltd recently appeared before the Fair Work Commission in relation to the application for approval of the Toll Global Logistics (Healthcare) Enterprise Agreement 2020. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly with regard to procedural fairness and the provisions concerning employee healthcare. The application was brought by Toll Transport, who sought to have the agreement approved and registered as a certified agreement.

The legal issues before the Commission were whether the agreement was genuinely negotiated and whether the process through which it was negotiated met the standards of procedural fairness. Additionally, the Commission had to consider whether the terms of the agreement were fair and reasonable in relation to healthcare provisions, and whether the agreement adequately provided for the resolution of disputes. Toll Transport argued that the agreement was the product of a genuine negotiation process and that it was fair and reasonable in its terms.

In reaching its decision, the Commission examined the evidence and submissions provided by both parties. It considered the procedural steps taken to negotiate the agreement, the participation of employee representatives, and the fairness of the agreement's terms. The Commission found that the negotiation process was generally procedurally fair and that the agreement had been genuinely negotiated. Furthermore, the Commission determined that the terms of the agreement, particularly those relating to employee healthcare, were fair and reasonable. Consequently, the application for approval was granted, and the Toll Global Logistics (Healthcare) Enterprise Agreement 2020 was registered as a certified agreement.

Toll Transport Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established