DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toll Transport Pty Ltd T/A Toll Retail Consumer Healthcare
(AG2018/3539)

TOLL RETAIL CONSUMER HEALTHCARE & NATIONAL UNION OF WORKERS SOMERTON NDC ENTERPRISE AGREEMENT 2018

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COMMISSIONER PLATT	ADELAIDE, 4 SEPTEMBER 2018

Application for approval of the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018 (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 Retail Consumer Healthcare. The agreement is a single enterprise agreement.

[2] On 17 August 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

[3] I note that the title of the Agreement is not identical to that contained in the Notice of Representative Rights (NERR), but I do not believe that this invalidates the NERR.

[4] The employer subsequently provided a copy of the voting information distributed to employees, a copy of the presentation given to the employees at the information sessions, and an undertaking which adopted the definition of “shift worker” as described in the National Employment Standards (NES) in clause 19 of the Agreement and identified that clauses 22, 28.7 and 38 of the Agreement are to be read in conjunction with the NES and that where any inconsistency arises the NES will prevail.

[5] No bargaining representatives were appointed. I have accepted the undertaking provided by the employer. As a result, the undertakings are taken to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 July 2021.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Toll Transport Pty Ltd T/A Toll Retail Consumer Healthcare, the Fair Work Commission was asked to approve an enterprise agreement between the employer and the National Union of Workers. The agreement in question, titled the Toll Retail Consumer Healthcare & National Union of Workers Somerton NDC Enterprise Agreement 2018, was made under section 185 of the Fair Work Act 2009. The application for approval was submitted by the employer, Toll Transport Pty Ltd, which operates under the name Toll Retail Consumer Healthcare. This agreement was intended to be a single enterprise agreement covering the terms and conditions of employment for the employees involved.

The legal issues the court had to decide included whether the agreement met all the requirements set out in sections 186, 187, 188 and 190 of the Fair Work Act. These sections outline the conditions that must be met for an enterprise agreement to be valid and approved by the Fair Work Commission. Specifically, the court needed to confirm that the agreement had been fairly negotiated, was not misleading or defective, and complied with the relevant provisions of the Act. The court also had to ensure that the agreement did not contravene any minimum standards set by the NES and that it included necessary provisions for the employees' rights and conditions of employment.

The Fair Work Commissioner concluded that the agreement did indeed meet all the legal requirements for approval. The court was satisfied that the agreement was fairly negotiated and did not contain any misleading or defective terms. The employer had provided evidence of how the agreement was presented to the employees and had undertaken to ensure that certain clauses in the agreement would be interpreted in conjunction with the NES, with the NES prevailing in case of any inconsistency. This undertaking was accepted by the court as a term of the agreement. The court further noted that the slight discrepancy in the title of the agreement did not invalidate the Notice of Representative Rights. With all requirements met, the court approved the agreement, which would commence seven days after the date of approval and would nominally expire on 1 July 2021.

Toll Transport Pty Ltd T/A Toll Retail Consumer Healthcare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established