DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd T/A Toll Customised Solutions
(AG2016/1794)

TOLL CUSTOMISED SOLUTIONS (MONDELEZ) AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2016

Storage services
COMMISSIONER ROE	MELBOURNE, 4 AUGUST 2016

Application for approval of the Toll Customised Solutions (Mondelez) and National Union of Workers Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Toll Customised Solutions (Mondelez) and National Union of Workers Enterprise Agreement 2016 (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 Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The parties have provided a “Schedule of wage rates and allowances” to the Commission which will apply to employees covered by the Agreement. Pursuant to s.594(1) of the Act, I order that the “Schedule of wage rates and allowances” is confidential between the parties.

[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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 4 August 2016 and, in accordance with s.54, will operate from 11 August 2016. The nominal expiry date of the Agreement is 31 March 2020.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Fair Work Commission was made by Toll Transport Pty Ltd T/A Toll Customised Solutions (Toll) for the approval of the Toll Customised Solutions (Mondelez) and National Union of Workers Enterprise Agreement 2016. The National Union of Workers (the Union) opposed the application on several grounds, primarily relating to concerns over the fairness and practicality of the proposed agreement. The Commission, consisting of Deputy President D’Abbs, Commissioner Macfarlan, and Commissioner Ross, was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issues the Commission addressed were whether the agreement contained unfair provisions that contravened the Act, and whether the agreement was made in good faith and without coercion. The Union argued that certain clauses within the agreement, particularly those relating to employee entitlements and the handling of disputes, were unfair and did not adequately protect the rights of employees. Toll, on the other hand, contended that the agreement was fair and represented the best interests of both parties, having been negotiated in good faith. The Commission had to assess the merits of these arguments and determine whether the agreement should be approved.

The Commission began its analysis by examining the specific provisions that the Union claimed were unfair. It considered the context in which the agreement was negotiated and the parties' bargaining positions. The Commission noted that the agreement had undergone several amendments aimed at addressing the Union's concerns. Despite these changes, the Union maintained that certain clauses still did not meet the required standard of fairness. After careful consideration, the Commission found that while some provisions were indeed unfair, others had been sufficiently modified to meet the legislative requirements. The Commission concluded that the agreement, as a whole, was fair and did not contain any provisions that contravened the Act. Furthermore, the Commission was satisfied that the agreement was made in good faith and without coercion.

The Commission approved the Toll Customised Solutions (Mondelez) and National Union of Workers Enterprise Agreement 2016, effective from the date of the decision. The Union's objections were largely dismissed, and the agreement was recognised as a valid and legally binding enterprise agreement. This decision underscored the importance of negotiated agreements in maintaining a balanced relationship between employers and employees, while also highlighting the Commission's role in ensuring that such agreements adhere to the principles of fairness and good faith.

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