Fair Work Commission rejects TWU arguments to stave off redundancies
A recent Fair Work Commission (FWC) decision reinforces that enterprise agreements do not dictate employer business and investment models.
In Toll Transport Pty Ltd v Transport Workers’ Union of Australia, the commission rules Toll is able to make drivers of a gas-powered fleet redundant if the trucks are put out of commission.
Toll operated a fleet of 44 rigid trucks fuelled by compressed natural gas (CNG), supplied by a specialised service station for the Toll Express Parcels Melbourne Airport site.
As of March 31, the service provider is no longer willing to provide CNG to the site.
Toll investigates the possibility of obtaining compressed natural gas from other sources in Melbourne without success.
The only alternative found by the TWU and put to Toll was that Toll undertake major new investment to convert the trucks to diesel, set up a CNG plant, or buy new trucks.
Toll considers these options and rejects them as too costly.
With no CNG fuel for the 44 prime movers, and therefore no work for the CNG trucks, drivers accepted voluntary redundancies.
However, the TWU claims Toll was in breach of enterprise agreement clauses ensuring it ‘commit to job security’ by engaging full time workers before the use of third parties, take practical steps to seek alternatives to redundancy and outsourcing, and consult with the union if a decision is taken to outsource work.
The TWU argues Toll did not adequately consider options to prevent redundancy, and had already decided on a course of action before consulting with the union.
Why a pre-emptive driver dismissal was found to be unfair, here
Toll argues the agreement is subject to ‘reasonable practical requirements’, and the rationale for retiring the CNG trucks is based on external circumstances out of its control.
Further, it was not apparent that the options advanced by the TWU were more reasonable or more practical than Toll’s preference.
FWC deputy president Reg Hamilton finds Toll correctly advises the TWU of the issue, reasonably considers – and rejects – alternative proposals put to it, and that the agreement is “not a vehicle for regulating Toll’s managerial and investment policies”.
“It would not be consistent with this qualification to determine that there is an obligation on the employer to undertake investment in new trucks, or take the other steps proposed by the TWU.
“The role of agreements is, generally speaking, not to regulate investment and business models by an employer.”
Hamilton rules the clauses “were not breached by the employer” and, “even if I am wrong about that, given that there is no work for the trucks to do after 31 March there no efficacy in making other or further findings”.