DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Toll Transport Pty Ltd T/A Toll Customised Solutions
(AG2014/8139)

TOLL CUSTOMISED SOLUTIONS (INTERCHANGE GY STORAGE FACILITY) AND TRANSPORT WORKERS UNION ENTERPRISE AGREEMENT 2015

Storage services
COMMISSIONER ROE	MELBOURNE, 5 DECEMBER 2014

Application for approval of the Toll Customised Solutions (Interchange GY Storage Facility) and Transport Workers Union Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Toll Customised Solutions (Interchange GY Storage Facility) and Transport Workers Union Enterprise Agreement 2015 (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 T/A Toll Customised Solutions (the Applicant). The agreement is a greenfields agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 20 November 2014. On 1 December 2014 I received a signed undertaking in response to the queries from Andrea Ryan, Head of Human Resource and Risk. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of s.172(2)(b) of the Act are met. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Transport Workers’ Union of Australia are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[6] As the agreement does not contain a consultation term that meets the requirements of s.205(1) and 205(1A) of the Act, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[7] Pursuant to s.53(2)(b) I note the Agreement was made with the Transport Workers’ Union of Australia and that the Agreement covers this organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 January 2015. The nominal expiry date of the Agreement is 1 November 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Toll Transport Pty Ltd, trading as Toll Customised Solutions, for the approval of a new enterprise agreement titled the Toll Customised Solutions (Interchange GY Storage Facility) and Transport Workers Union Enterprise Agreement 2015. The Transport Workers Union sought to have certain provisions of the agreement disallowed. The central issue for the Commission was whether the provisions in question were in breach of the statutory requirements set out in the Fair Work Act 2009, particularly in relation to the enterprise's provisions on employment conditions and protections for employees.

The Commission examined each contested provision to determine if it complied with the Act's provisions concerning unfair dismissal, redundancy payments, and minimum employment standards. The Transport Workers Union argued that some of the provisions did not provide adequate protections to employees, particularly in relation to redundancy and termination of employment. Toll Transport Pty Ltd defended the provisions, asserting they were necessary to maintain operational flexibility and competitiveness within the industry. The Commission had to balance the rights of the employer to manage their business with the need to protect employees' rights and ensure fair terms of employment.

After careful consideration of the arguments and the relevant statutory framework, the Commission determined that certain provisions of the agreement did not meet the standards set out in the Fair Work Act. The Commission found that these provisions did not sufficiently protect employees from unfair dismissal and did not provide adequate redundancy payments. Consequently, the Commission disallowed these provisions and approved the rest of the agreement. This decision ensures that employees have adequate protections while allowing the employer to maintain necessary operational flexibility within the bounds of the law.

Toll Transport Pty Ltd T/A Toll Customised Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established