Toyota Material Handling Australia Pty Ltd

[2024] FWCA 4028

[2024] FWCA 4028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toyota Material Handling Australia Pty Ltd

(AG2024/3682)

TOYOTA MATERIAL HANDLING AUSTRALIA ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 19 NOVEMBER 2024

Application for approval of the Toyota Material Handling Australia Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Toyota Material Handling Australia Enterprise Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Toyota Material Handling Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) issued by the Employer was prepared using a version of the NERR that applied prior to the 6 June 2023 legislative reforms. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. Having regard to the Employer’s submissions, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 2.2 of the Agreement and the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

·   Compassionate Leave: Clause 26 of the Agreement provides for compassionate leave however it appears to be silent in relation to the entitlement to leave where an employee, their partner or spouse has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104 of the Act.

·   Public holiday substitution: Clause 32.3 of the Agreement states that ‘a public holiday may be substituted by agreement either at Branch level or an individual level.’ This appears inconsistent with s 115(3) of the Act which specifies that an agreement may include terms for an employer and an employee to agree on public holiday substitution.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 26 November 2024. The nominal expiry date of the Agreement is 26 November 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A