s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - interpretation of Agreement clauses - whether Applicant is covered by Agreement, entitled to minimum overtime payment for work undertaken on Sundays and whether Applicant was correctly classified

• [1] On 6 October 2025, the Applicant (Mr Christopher Smith) lodged an s.739 Application which concerned the operation of the Toll-TWU Enterprise Agreement 2023-2026[1] (the Agreement) which was approved (with undertakings) by Commissioner Wilson on 12 December 2023.

• [2] The matters in dispute relate to clause 34.6 of the Agreement, in respect to the application of overtime payment and the correct classification of the Applicant.

• [3] The matter was conciliated on 17 October 2025 but did not resolve.

• [4] Clause 15 of the Agreement contains the dispute resolution procedure, where clause 15(d) empowers the Commission with arbitration powers. There was no suggestion that the pre-conditions for arbitration had not been met.

• [5] Directions for the filing of material and determination of the matter were made on 21 October 2025. The matter was heard on 20 November 2025. The material was collated into a Digital Court Book (DCB) and distributed to the parties. The DCB was received into evidence with weight being apportioned in accordance with admissibility and relevance.

• [6] The Applicant represented himself. The Respondent was represented by Mr Peter Willink (with permission being granted pursuant to s.596 (2)(a) complexity and efficiency). The matter was heard as a determinative conference in order to ameliorate the granting of permission to the respondent.

• [7] The Applicant submitted a Statement[2] and gave evidence. The Respondent submitted two witness statements[3] from Mr Simon Richardon (Regional Manager, Mining and Energy). No issues of credit arose from the evidence provided by both parties.

• [8] The questions to be answered detailed in the Directions are as follows;

1. Is Mr Smith is covered by the 2023 Agreement?;
2. If Mr Smith is covered by the 2003 Agreement, does clause 34.6 of the Agreement set a minimum payment of double time for Sunday work undertaken by the Applicant for the Respondent; and
3. What is the correct classification of Mr Smith under the relevant Award?

• [9] There was no dispute that the work performed by Mr Smith was covered under the Toll-TWU Enterprise Agreement 2023-2026 (the Agreement).

• [10] The Agreement contains an undertaking as detailed below.

• [11] Clause 6(a) of the Agreement specifies that the Agreement is read in conjunction with the Award, defined in Clause 3 as the Road Transport and Distributions Award 2020 and the Road Transport (Long Distance Operations) 2020 (the Awards).

• [12] Clause 6(a) of the Agreement also specifies the Agreement is to be read in conjunction with any 'Local Agreements,' defined within clause 3 and incorporated into the Agreement by way of clause 8.1(a) Clause 8.1(b) provides that Part A of the Agreement will prevail over any inconsistencies with Local Agreements. The relevant Local Agreement referred to for Mr Smith is the "Toll Energy South Australia Local Agreement - Infield" (the Local Agreement)[4].

• [13] There was no dispute that the work performed by Mr Smith was covered under the Agreement.

• [14] The Applicant's Contract of Employment dated 13 September 2022[5] states that his conditions of employment are as prescribed by the Toll-TWU Enterprise Agreement 2021-2022 (a predecessor to the current Agreement) and the Local Agreement.

• [15] The relevant clauses for the matter in dispute regarding Mr Smith's classification is clause 3.1 of the Local Agreement which provides as follows:

"Each Employee will be classified as a Transport Worker Grade 9, in accordance with the Award and as per Schedule 2."

• [16] The term 'Transport Worker' is defined in Clause 3 of the Agreement as:

"Any person who is eligible to be a member of the Union and who is employed by Toll in Australia in any of the classifications contained in the Award or in a Local Agreement that applies at the site at which the person is, or is to be, employed."

• [17] The relevant clause for the matter in dispute in respect to Mr Smith's overtime payment for Sundays is clause 34.6 of the Agreement. As contained within Part A of the Agreement, clause 34.6 states:

"Notwithstanding anything contained in the Award, a Transport Worker must be paid at 200% of the ordinary hourly rate for all work (including overtime) that is performed on a Sunday."

• [18] Undertaking 3 appears to have been given to enable the BOOT test to be met and prescribes the rates of pay (by reference to Undertakings 1 and 2) to which relevant penalty rates or loadings (such as detailed in Clause 34.2) apply.

• [19] The relevant Classification descriptors contained in the Road Transport and Distribution Award 2020 are as follows [emphasis added];

(a) Understands and is responsible for quality control standards.

(b) Possesses an advanced level of interpersonal and communication skills.

(d) Has sound working knowledge of all distribution facility duties performed at levels below this grade, exercises discretion within scope of this grade.

(e) May perform work requiring minimal supervision either individually or in a team environment.

(f) Must be competent to perform one or more of the following tasks/duties:

(i) use of a VDU for purposes such as the maintenance of a deposit storage system, information input/retrieval, etc;

(ii) operation of all materials handling equipment under license, where required;

(iii) development and refinement of a distribution facility layout including proper location of goods and their receipt and dispatch; or

(iv) operation of a truck with a capacity in excess of 6 tonnes up to and including 13.9 tonnes GVM.

(g) In addition to the above, may be responsible for the proper application and maintenance of appropriate work health and safety standards.

(a) Implements quality control techniques and procedures.

(b) Understands and is responsible for a distribution facility or a large section of a distribution facility.

(c) Possesses a highly developed level of interpersonal and communication skills.

(d) Ability to supervise and provide direction and guidance to other employees including the ability to assist in the provision of on-the-job training and induction.

(e) Exercises discretion within the scope of this level.

(f) Exercises skills attained through the successful completion of an appropriate certificate and must be competent to perform one or more of the following tasks or combination of tasks:

(i) liaising with management, suppliers and customers with respect to distribution facility operations;

(ii) detailing and co-ordinating activities of other distribution facility workers; or

(iii) maintaining control registers including inventory control and being responsible for the preparation and reconciliation of regular reports or stock movement, dispatches, etc.

• [20] The Applicant submitted a copy of his job description[6] as evidence of the duties he performed. The Applicant summarised his duties are as follows:

• Receiving, processing, and staging freight, ensuring accuracy and traceability;
• Planning and prioritising workflow to meet customer deadlines;
• Monitoring KPIs and maintaining system records;
• Allocating, dispatching and managing inventory independently;
• Complying with all safety and environmental procedures;
• Liaising with stakeholder and resolving operational issues; and
• Coaching less experienced team members to maintain performance standards.

• [21] The Applicant conceded that he did not possess an appropriate certificate in respect to the skills and duties under A.4.1(f).

• [22] The facts are largely not in dispute.

• [23] I have had regard to the submissions contained in the DCB as varied during the hearing. I do not intend to repeat them here.

• [24] I have refrained from making commentary on the drafting of the Agreement and the Local Agreement, other than identifying there are many opportunities for improvement.

• [25] There was no dispute that the Applicant was covered by the Agreement.

• [26] From the material before me (including the Contract of Employment and the evidence about the duties that he performed), I find that the Applicant was a Transport Worker as defined in Clause 3 of the Agreement and worked at the Moomba site which extends from South Australia into Queensland.

• [27] It was not disputed that the Local Agreement applied to the Moomba site.

• [28] The Applicant accepted that he had not completed any qualification related to a distribution facility.

• [29] This question is an issue of Agreement interpretation. I accept and adopt the principles espoused in AMWU v Berri[7] and as distilled more recently in AMA and ASMOF v The Royal Women's Hospital[8].

• [30] During the hearing, the Respondent accepted that Clause 34.6 of the Agreement applies to the Applicant. Had that concession not been made, in any event, I would have found so on the basis that Clause 34.6 is contained in Part A of the Agreement and the interaction of relevant instruments as prescribed within clauses 6.1 and 8 of the Agreement.

• [31] The sole remaining issue is the determination of the applicable rate of pay. This can be determined by reference to the Agreement Undertakings.

• [32] In reference to Undertaking 3, the applicable rate of pay of the penalty will be determined by the Application of Undertaking 1 as a Local Agreement exists at the site where the Applicant works. In the absence of a Local Agreement, Undertaking 2 would apply.

• [33] This question is an issue of Agreement interpretation and a consideration of the factual circumstances.

• [34] Clause 3.1 of the Local Agreement provides that each employee will be classified as a Transport Worker Grade 9 in accordance with the Award and as per Schedule 2. The Applicant must therefore meet the relevant Road Transport and Distributions Award 2020 classification requirements. It was accepted that the Road Transport (Long Distance Operations) 2020) had no application in this matter.

• [35] The Applicant is currently classified as a Distribution Facility Employee Level 3.

• [36] In order for the Applicant to be classified as Level 4, clause 1.4.1 (f) of the Road Transport and Distributions Award 2020 requires the exercise of skills attained through the successful completion of an appropriate certificate. There is no dispute that the Applicant does not have an appropriate Certificate qualification. I find that the Award Classification structure does not contain an option for knowledge or experience to be a substitute for a formal qualification.

• [37] As a result of this requirement, and the Applicant's concession that he does not have such a certificate, the Applicant is unable to be graded at Level 4 (TWG9), and I find he is correctly graded at Level 3 (TWG7).

• [38] I have determined the answers to my questions are as follows:

1. Is Mr Smith is covered by the 2023 Agreement? - Yes
2. If Mr Smith is covered by the 2003 Agreement, does clause 34.6 of the Agreement set a minimum payment of double time for Sunday work undertaken by the Applicant for the Respondent? - Yes
3. What is the correct classification of Mr Smith under the relevant Award? - Level 3 (TWG7).

[1] [2023] FWCA 4181.

[3] Pages 38 to 44 of the DCB - Witness Statement from Mr S Richardson from the Respondent; Pages 79 to 80 of the DCB, Reply Statement from Mr S Richardson from the Respondent.

[4] Pages 81 to 88 of the DCB - Toll Energy South Australia Local Agreement - Infield.

[7] [2017] FWCFB 3005.

[8] [2022] FWCFB 7.

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