Toll Transport Pty Ltd T/A Toll Transport
[2021] FWCA 6099
•4 OCTOBER 2021
| [2021] FWCA 6099 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Toll Transport Pty Ltd T/A Toll Transport
(AG2021/7621)
TRGL EQUIPMENT (TOLL TRANSPORT PTY LIMITED) GOLDFIELDS MAINTENANCE TEAM AGREEMENT 2016 - 2020
Manufacturing and associated industries | |
DEPUTY PRESIDENT BEAUMONT | PERTH, 4 OCTOBER 2021 |
Application for termination of the TRGL Equipment (Toll Transport Pty Limited) Goldfields Maintenance Team Agreement 2016-2020
[1] This decision concerns an application made by Toll Transport Pty Ltd T/A Toll Transport (the Applicant) on 28 September 2021 for the termination of the TRGL Equipment (Toll Transport Pty Limited) Goldfields Maintenance Team Agreement 2016-2020 (the Agreement) 1 made under s 225 of the Fair Work Act 2009 (Cth) (the Act).
[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.
[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.
[4] In support of its application, the Applicant has provided a declaration and a witness statement from Mr Nathan Perrott who is the General Manager, Operations – Toll Equipment, of the Applicant.
[5] Mr Perrott explained that the Agreement had a nominal expiry date of 25 November 2020, and that initially the Agreement covered approximately 10 employees who performed maintenance and service work for the Applicant’s fleet and other third parties in the Goldfields area of Western Australia. 2 Mr Perrott said there were significant reductions in the volume of work performed by the Goldfields’ workshop in late 2020 and early 2021, due to the loss of commercial contracts with a number of third party customers.3
[6] In June 2021, the Applicant consulted the relevant employee group about proposed closure of the workshop, and by 4 August 2021, all employees had been provided with notice of the termination of their employment. 4 Mr Perrott said that the last employee concluded employment with the Applicant on 20 August 2021.5 At the time the application was made, Mr Perrott advised that there were no employees who perform worked that are covered by the Agreement.6
[7] Mr Perrott noted that in order to support remaining Toll assets in the Goldfields area, the Applicant considered that there was scope to restart the workshop, but work would be performed only five days a week, in contrast to the 24/7 - seven days a week model, which operated under the Agreement. 7 Mr Perrott observed that the terms and conditions of the Agreement did not provide for the model of operation that the business was contemplating adopting.8
Consideration
[8] I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.
[9] The employer’s view has been considered. Having reviewed the Agreement, I accept that the Agreement incorporates a ‘Common Hourly Rate’ inclusive of loadings for weekends, night shifts, overtime and afternoon shifts, and that the hours of work of work clause in the Agreement is reflective of operations where work is performed 24/7 - seven days a week. Whilst there are no employees currently performing work under the Agreement, it is apparent from Mr Perrott’s evidence that the termination of the Agreement may create future employment opportunities.
[10] Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE422341 PR734529>
1 [2016] FWCA 8428; PR587849.
2 Witness Statement of Nathan Perrott (Perrott Statement) [5].
3 Perrott Statement [12].
4 Ibid.
5 Perrott Statement [15].
6 Perrott Statement [16].
7 Perrott Statement [18].
8 Ibid.
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