Toll can’t escape worker’s second case over right to convert to full-time
Employment July 3, 2018 10:23 pm By Miklos Bolza

Toll Transport has lost a bid to dismiss a second proceeding brought against it by a freight handler who last year won the right to convert from a casual to a full-time position in a precedent setting ruling.

In filing this latest action against Toll and one of its operations managers in December, employee Joshua Tomvald alleged the company had breached the Fair Work Act and the Toll Group – TWU Enterprise Agreement by refusing to offer him the 4am starting time he had when working as a casual.

While Toll argued the case was an attempt to relitigate the earlier proceeding, which saw Federal Court Justice Geoffrey Flick rule against Toll in October 2017. Tomvald said the new case was an extension rather than a repeat of the first.

Tomvald had been working a 38-hour week as a casual at Toll, from 4am for an eight hour shift. The schedule was shifted to a 5am start when Toll, by court order, gave him full-time status. The result was a loss of penalty rates worth 12.5% of his wage, Tomvald’s barrister, Oshie Fagir, said at a hearing in April.

In a judgment issued Friday, Justice Robert Bromwich ruled Tomvald could proceed with three of his four claims — that Toll contravened the Act and the EA by taking adverse action against him, prioritising casual and part-time employees ahead of him, and saying the firm had no requirement for a freight handler to work from 4am from Tuesday to Thursday.

Tomvald’s claim that Toll had breached the EA by refusing to let him start work at 4am was struck out. A lack of reference to any specific start time in Judge Flick’s reasons in ruling that Toll was required to convert the employee from casual to full-time on a “like for like” basis was “conspicuous in its absence,” Judge Bromwich said.

“[It] is plain that Mr Tomvald is not now entitled to seek any relief upon the basis of any entitlement, based upon his conversion to permanent full-time employment with Toll, to any particular pattern of hours, let alone any entitlement upon that basis to commence work at 4.00 am,” Judge Bromwich wrote.

“The seeking of such relief constitutes an attempt, although disavowed by Mr Tomvald, to re-litigate a matter that has been finally and conclusively determined adversely to him.”

Judge Flick’s judgment in Tomvald’s first case found Toll contravened his right to convert from a casual to a permanent full-time position on a “like for like” basis. The judge ruled Toll’s decision to reject Tomvald’s request in April 2016 to convert to full-time, instead offering him a permanent part-time position of 30 hours a week, “wrongfully denied” the employee’s right to full-time work under the company’s enterprise agreement.

The ruling saw Toll pay $42,500 in penalties.

Judge Bromwich has ordered both sides to confer on mediation and notify the court of any reasons it should not occur. A case management hearing has been scheduled for July 27.

Toll was represented by Fabiana Rodriguez of its in-house legal team. Tomvald was represented by the Workplace Advisory Group.

The case is Joshua Wayne Tomvald v Toll Transport Pty Ltd & Anor.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.