Toll Transport Pty Ltd T/A Toll Customised Solutions Summary

[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

Printed by authority of the Commonwealth Government Printer

The applicant, Toll Transport Pty Ltd, trading as Toll Customised Solutions, sought approval for an enterprise agreement with the National Union of Workers. The application was made before the Fair Work Commission, which has jurisdiction under the Fair Work Act 2009 to approve such agreements. The dispute centred around the terms of the proposed agreement, which the union and the employer had negotiated in good faith. The union argued that the agreement was fair and reasonable, while the employer was concerned about certain provisions that they believed could have significant financial implications.

The primary legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act and whether it was fair and reasonable. The Commission had to consider if the agreement contained the necessary minimum terms, if it was made in good faith, and if it was fair and reasonable for the employees involved. The employer's concerns regarding the financial implications of certain provisions were also considered to determine if these terms were reasonable in the context of the overall agreement.

The Fair Work Commission found that the agreement did comply with the statutory requirements and was fair and reasonable. The Commission noted that the parties had made the agreement in good faith and that the terms of the agreement were reasonable in the context of the overall employment relationship. The employer's concerns about certain provisions were addressed by the Commission, which found that these provisions were not unreasonable given the nature of the work and the industry standards. The Commission approved the agreement, allowing it to come into effect.

The Commission's decision was that the Toll Customised Solutions (Greystanes) and National Union of Workers Enterprise Agreement 2012 was to be approved. The agreement was to be registered and published as required by the Fair Work Act, and it would govern the employment conditions of the employees covered by the agreement.

Toll Transport Pty Ltd T/A Toll Customised Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established