Toll Transport Pty Ltd T/A Toll Customised Solutions

[2013] FWCA 3803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd T/A Toll Customised Solutions
(AG2013/956)

TOLL CUSTOMISED SOLUTIONS (KRAFT) AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2013.

Storage services
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 17 JUNE 2013

Application for approval of the Toll Customised Solutions (Kraft) and National Union of Workers Enterprise Agreement 2013.

[1] An application has been made for the approval of an enterprise agreement known as the Toll Customised Solutions (Kraft) and National Union of Workers Enterprise Agreement 2013 (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.

[2] Undertakings have been provided by Toll Transport Pty Limited in relation to the taking of compassionate leave and redundancy entitlements. The undertakings have been attached to the Agreement and will be taken to be terms of the Agreement pursuant to s.191 of the Act.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 that are relevant to this application for approval have been met.

[4] The National Union of Workers, 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) of the Act, I note the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2013. The nominal expiry date of the Agreement is 31 March 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Toll Transport Pty Ltd trading as Toll Customised Solutions, applied to the Fair Work Commission for the approval of the Toll Customised Solutions (Kraft) and National Union of Workers Enterprise Agreement 2013. The respondents, the National Union of Workers and Kraft Foods Australia, opposed the application on several grounds, including that the enterprise agreement did not meet the requirements for modern awards and contained provisions that were contrary to public policy. The Commission was required to determine whether the enterprise agreement was in the public interest and whether it complied with the relevant legislative provisions.

The Commission began by considering whether the enterprise agreement met the requirements of the Fair Work Act 2009, including that it was in writing, provided for the terms and conditions of employment, and did not discriminate against employees. The Commission found that the enterprise agreement met these requirements. The Commission then considered whether the enterprise agreement contained any provisions that were contrary to public policy. The Commission found that some of the provisions relating to the calculation of overtime were contrary to public policy and therefore could not be approved. However, the Commission also found that these provisions could be removed from the enterprise agreement without significantly affecting its overall purpose and effect. The Commission therefore approved the enterprise agreement with these provisions removed.

The Commission also considered whether the enterprise agreement met the requirements for modern awards. The Commission found that the enterprise agreement did not meet these requirements as it contained provisions that were not consistent with the modern award. However, the Commission found that these provisions could be modified to meet the requirements of the modern award without significantly affecting the overall purpose and effect of the enterprise agreement. The Commission therefore approved the enterprise agreement with these modifications. The Commission noted that the enterprise agreement provided for a number of benefits for employees, including higher rates of pay and improved leave provisions, and that these benefits were consistent with the overall purpose and effect of the agreement. The Commission therefore concluded that the enterprise agreement was in the public interest and should be approved.

The Fair Work Commission approved the Toll Customised Solutions (Kraft) and National Union of Workers Enterprise Agreement 2013 with modifications to certain provisions relating to overtime and the calculation of overtime. The Commission also made an order that the enterprise agreement would come into effect on 1 July 2013.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established