Toll Transport Pty Ltd T/A Toll Customised Solutions

[2014] FWCA 4243

[2014] FWCA 4243

FAIR WORK COMMISSION

DECISION

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

Toll Transport Pty Ltd T/A Toll Customised Solutions
(AG2014/6028)

TOLL CUSTOMISED SOLUTIONS (KNOXFIELD) & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER BULL	PERTH, 26 JUNE 2014

Application for approval of the Toll Customised Solutions (Knoxfield) & National Union of Workers Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Toll Customised Solutions (Knoxfield) & National Union of Workers Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Extension of time

[2] The application was lodged at Melbourne on 13 May 2014. Section 185(3)(a) of the Actprovides that an application for approval must be made within 14 days after the Agreement is made. I note that the application was lodged out of time. Section 185(3)(b) of the Actconfers a discretion on the Fair Work Commission to extend time. In light of the reasons provided by the Applicant, I have decided to exercise the discretion provided by subsection 185(3)(b) of the Act and extend time accordingly.

Other concerns

[3] On 22 May 2014, the Commission wrote to the Applicant and the National Union of Workers (NUW) as a bargaining representative for the Agreement, outlining some concerns the Commission had with the Agreement. In particular, the concerns related to the ordinary hours of work and personal leave.

[4] A response was received from the Applicant on 29 May 2014.

Ordinary hours of work

[5] The Commission noted that the Agreement at clause 25.8 provides for a spread of ordinary hours that are greater than the ordinary hours of work provided for in the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[6] The Applicant has advised the Commission even in the most “extreme” scenario (that is, the spread of hours is by agreement between the employer and employee altered by a maximum of one (1) hour pursuant to clause 25.9.3, thereby ordinary time beginning at 5:00am) the rates of pay under the Agreement are better than the equivalent rates under the Award and therefore satisfy the “better off overall test” requirements.

[7] Based on the correspondence provided by the Applicant, I am satisfied that employees would be better off overall under the Agreement, despite the span of ordinary hours being greater than the Award.

Undertaking

Personal Leave

[8] Clause 32.1.3 of the Agreement provides that employees shall not be entitled in the first year of employment to personal leave in excess of five days and ten days in the second and subsequent years of employment. The Commission noted in its correspondence that this appeared to be contrary to the National Employment Standards which does not restrict the amount of personal leave within the employee’s first year of service.

[9] An undertaking with respect to clause 32.1.3 and in particular, the accrual of annual leave in accordance with the National Employment Standards has been provided by the Applicant.

[10] Upon review of the undertaking I am satisfied that employees would be better off overall under the Agreement.

[11] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[12] I have sought the views of the NUW in respect of the undertaking, pursuant to s.190(4) of the Act. The NUW has not advised of any concerns with the undertaking provided.

[13] The Agreement covers employees of the Applicant employed at 2/20 Henderson Road Knoxfield, Victoria and engaged in the receiving, handing, storing and delivering of goods and merchandise in or in connection with warehousing and bond and free stores operated by the Applicant. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or geographically distinct.

[14] I am satisfied that each of the requirements of ss.187, 188 and 190 of the Act as are relevant to the application for approval have been met.

[15] The NUW 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 this organisation.

[16] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 3 July 2014. The nominal expiry date of the Agreement is 31 March 2017.

COMMISSIONER

Annexure A

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