Toll Transport Pty Ltd T/A Toll Customised Solutions

[2013] FWCA 1319

[2013] FWCA 1319

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd T/A Toll Customised Solutions
(AG2012/12812)

TOLL CUSTOMISED SOLUTIONS (GREYSTANES) AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2012

Storage services
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 1 MARCH 2013

Application for approval of the Toll Customised Solutions (Greystanes) and National Union of Workers Enterprise Agreement 2012.

[1] At the conclusion of the hearing on 28 February 2013, the following decision (now edited) was given.

[2] This is an application for the approval of an enterprise agreement known as the Toll Customised Solutions (Greystanes) and National Union of Workers Enterprise Agreement 2012 (the Agreement). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement made as referred to in s.172(2)(b) of the Act (a greenfields agreement).

[3] The National Union of Workers has provided a declaration in support of the approval of the Agreement. I note that there has been an objection to the approval of the Agreement by the Transport Workers’ Union of Australia (TWU), but that following the preparation of materials and the filing of witness materials and submissions, the TWU decided to withdraw its objection.

[4] In the present matter I have had the advantage not merely of the relevant documentation that was lodged with the application for approval of the Agreement, but also of written submissions and statements relating to particular requirements of the Act.

[5] In particular, from that material, I am satisfied that the Agreement relates to a genuine new enterprise that the employer is establishing or preparing to establish, and that the employer has not employed any of the persons who will be necessary for the normal conduct of the enterprise and who will be covered by the Agreement (see s.172(2)(b) of the Act).

[6] I am also satisfied that the group of employees covered by the agreement was fairly chosen (see s.186(3)). As part of my consideration of whether the group was fairly chosen, I consider that the group of employees to be covered (namely, the operational warehouse employees at the Greystanes facility) will be geographically or operationally, or organisationally distinct (see s.186(3A)). In this regard I note that an undertaking has been provided by Toll Transport Pty Ltd (the Applicant) in relation to the geographical coverage of the Agreement. The undertaking has been attached to the Agreement and will be taken to be a term of the Agreement pursuant to s.191 of the Act. I have taken this and other considerations into account in reaching my conclusion that the group of employees was fairly chosen.

[7] 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.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 March 2013. The nominal expiry date of the Agreement is 30 September 2016.

SENIOR DEPUTY PRESIDENT

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