STATEMENT

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Toll Transport Pty Ltd T/A Toll Tasmania
(C2016/2450)

Road transport industry
COMMISSIONER LEE	MELBOURNE, 11 FEBRUARY 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES. .

[1] This matter involves the Transport Workers’ Union of Australia (the Applicant) and Toll Transport Pty Ltd T/A Toll Tasmania (Toll Tasmania).

[2] The parties met in conference before the Fair Work Commission today regarding a dispute filed by the Applicant concerning matters arising under the Toll Group – TWU Enterprise Agreement 2013 – 2017 (the Agreement).

[3] Mr J. Duck has been given a written warning for alleged insubordination related to a failure to obey a lawful and reasonable instruction.

[4] As the warning given was disciplinary in nature I have expressed the view that the warning should be converted to a verbal warning consistent with Clause 23 – Counselling and Warning Procedures of the Toll Tasmania State Agreement 2005 (the Local Agreement).

[5] Further, there should be a further meeting convened formally with Applicant to convey the verbal warning and the seriousness of the alleged conduct.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute between the Transport Workers' Union of Australia and Toll Transport Pty Ltd, trading as Toll Tasmania, arose in the Fair Work Commission. The Union alleged that Toll had breached the terms of the enterprise agreement and the National Employment Standards (NES) by taking adverse action against an employee. The employee, who had been suspended and later dismissed, claimed that his actions were protected under the Fair Work Act 2009. The Union sought reinstatement and compensation for the employee.

The primary legal issues for the Commission to determine were whether the employee's actions constituted protected industrial action and whether the dismissal was procedurally unfair. The Commission had to examine the facts of the employee's suspension and dismissal, the provisions of the enterprise agreement, and the NES. It also needed to consider the employer's justification for the adverse action and whether the employer had followed the correct procedures as outlined in the Fair Work Act.

The Commission found that the employee's actions did constitute protected industrial action and that the dismissal was procedurally unfair. The Commission held that Toll had failed to provide adequate information to the employee about the reasons for the suspension and the dismissal, which was required under the NES. The Commission also found that the employer's justification for the dismissal was not sufficient to outweigh the employee's right to protected industrial action. The Commission ordered that the employee be reinstated to his previous position and compensated for the loss of wages and benefits.

Transport Workers' Union of Australia v Toll Transport Pty Ltd T/A Toll Tasmania

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established