1 Fair Work Act 2009 s.604 - Appeal of decisions Toll Transport Pty Limited v Transport Workers’ Union of Australia (C2025/10276) VICE PRESIDENT GIBIAN DEPUTY PRESIDENT BINET DEPUTY PRESIDENT WRIGHT SYDNEY, 11 FEBRUARY 2026 Appeal against decision [2025] FWC 2858 of Commissioner Sloan at Sydney on 26 September 2025 in matter number C2025/5465 – Interpretation of enterprise agreement – Whether employer entitled to direct employees to take RDOs – Whether permission to appeal required – Approach to determining whether award provisions incorporated into an enterprise agreement inconsistent with terms of the agreement – Permission to appeal not required – Employer not entitled to direct taking of RDOs – Appeal dismissed. Introduction [1] Toll Transport Pty Limited (Toll) appeals a decision1 of Commissioner Sloan dated 26 September 2025 under s 604 of the Fair Work Act 2009 (Cth) (the FW Act). The decision and order were made following an arbitration of a dispute concerning whether Toll can direct relevant employees covered by the Toll – TWU Enterprise Agreement 2023 – 2026 (the Agreement) to take rostered days off (RDOs) in accordance with a schedule planned by Toll. The respondent to the appeal is the Transport Workers’ Union of Australia (the TWU). [2] In the decision, the Commissioner determined that Toll was not entitled to direct the relevant employees to take RDOs in accordance with an RDO schedule set by Toll. Toll disagrees and submits that the Commissioner misconstrued the terms of the Agreement. For the reasons which follow, permission to appeal is not required but the appeal must be dismissed. In our opinion, the Commissioner answered the question raised in the dispute correctly. Permission to appeal [3] Clause 15 of the Agreement provides for a dispute resolution procedure. A dispute may be referred to the Fair Work Commission initially for conciliation under clause 15(c) and, if the dispute is not resolved by conciliation, clause 15(d) provides that the Commission will proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties. Clause 15(e) provides that the decision of the Commission will be binding on the parties subject to a number of matters including that: [2026] FWCFB 30 DECISION [2026] FWCFB 30 2 (i) There will be a right of appeal to a Full Bench of the FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow. [4] Notwithstanding the reference in clause 15(e)(i) of the Agreement to there being a ‘right of appeal’, Toll indicated in its written submissions that it accepted that permission to appeal was required. That position was adopted as a result of Toll’s understanding of the recent decision of the Full Bench in United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FWCFB 198; (2025) 343 IR 1 (UFU v FRV). Toll referred specifically to paragraph [107] of the Full Bench decision which is in the following terms: [107] In the face of this somewhat confusing line of authority, we prefer the position that the case authorities that affirm that a provision in a dispute resolution procedure in an enterprise agreement may validly confer a right of appeal are best explained on the basis that such a provision is given effect by s 739(3) as one which negatives the Commission’s power to grant or refuse permission to appeal. It may be acknowledged that this explanation is not entirely satisfactory given the observations in Maersk at [10] and the differing sources of statutory authority identified in the cases to which we have referred. In any event, whatever view is taken, we do not consider that we are bound to extrapolate from these decisions that, in an enterprise agreement, the parties are entirely at large to prescribe the nature, scope and incidents of an appeal which the Commission is required to hear and determine, or the constitution of the Commission when it does so, irrespective of the appeal provisions of the FW Act. We consider the correct position to be that where, pursuant to s 739(4), there is agreement to arbitrate a dispute, there will as part of the arbitral process be a right of appeal, subject to the grant of permission, in accordance with ss 604 and 607 unless, because of s 739(3), the Commission is prohibited in part or whole from exercising its appeal powers because of an applicable limitation in the dispute resolution procedure. There is otherwise no statutory basis for a dispute resolution procedure to validly allow or require the Commission to exercise appeal powers for which the FW Act does not provide or to constitute a Full Bench in circumstances not authorised by the FW Act. [5] Toll indicated that it understood the reference in the second last sentence of that paragraph to an arbitral process including a right of appeal, subject to the grant of permission, to mean that the dispute resolution provision of an enterprise agreement could not exclude the requirement to seek permission to appeal in s 604(1) of the FW Act from a decision made in arbitration of a dispute. The TWU initially adopted the same position. At the hearing of the appeal, the TWU resiled from that position and accepted that clause 15(e)(i) of the Agreement conferred a right of appeal not subject to a requirement to seek permission to appeal. The TWU was correct to do so. [6] The observations of the Full Bench in paragraph [107] of UFU v FRV have been misunderstood by Toll. The question which arose in UFU v FRV was whether an enterprise agreement could provide for an appeal from a decision of a Full Bench of the Commission made in arbitration of a dispute referred to it under the agreement to another Full Bench. For the purpose of considering that question, the Full Bench discussed a series of decisions which establish that a dispute resolution procedure in an enterprise agreement may provide, as part of an agreed arbitral process conducted by the Commission, that there is a right of appeal without any prior requirement for permission to appeal notwithstanding s 604(1) of the FW Act. The reasoning supporting that conclusion was relevant to the question addressed by the Full Bench [2026] FWCFB 30 3 in UFU v FRV because they touch upon the extent to which a dispute resolution provision of an enterprise agreement can, in providing for a dispute to be referred to the Commission, provide for a procedure which departs from the manner in which the Commission ordinarily conducts itself under the Act. [7] The proposition that an agreed arbitral process contained in an enterprise agreement may provide for a right of appeal which is not conditioned by a requirement to seek permission is authoritatively established in a long line of authorities.2 We do not read the decision in UFU v FRV as suggesting to the contrary. At paragraph [84], the Full Bench indicated that this proposition ‘may be accepted’. In paragraph [107], the Full Bench expressed the view that the authorities are best explained on the basis that a provision of a dispute resolution procedure in an enterprise agreement which confers an unconditional right of appeal is given effect by s 739(3) as one which negatives the Commission’s power in s 604(1) to grant or refuse permission to appeal. The Full Bench did not suggest that it is impermissible for an arbitral process in an enterprise agreement to confer an unconditional right of appeal. To the contrary, the Full Bench accepted that such a provision is authorised by s 739(3) as a limitation on the powers otherwise available to the Commission. [8] The language of clause 15(e)(i) of the Agreement is unequivocal. The clause provides that ‘there will be a right of appeal to a Full Bench of the FWC’ of a decision made when the Commission is arbitrating or determining a dispute referred to it under the clause. Dispute settlement provisions in enterprise agreements conferring ‘a right of appeal’ have generally been construed as creating an independent right of appeal for which permission to appeal is not required.3 Clause 15(e)(i) of the Agreement should be construed in the same manner. Toll has an unqualified right of appeal and does not require permission to appeal. Nature of appeal [9] Appeals to the Full Bench under s 604(1) of the Act are generally appeals by way of rehearing.4 The consequence is that the Full Bench can only exercise its powers on appeal if there was an error in the decision at first instance. The function of the Full Bench on appeal, if permission to appeal is granted, is to determine whether there was an error on the part of the primary decision-maker.5 To complicate matters further, clause 15(e)(ii) of the Agreement provides: (ii) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense [10] An appeal ‘in the strict sense’ is an appeal in which the function of the appellate body is ‘simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given’, and in which the appellate body cannot receive further evidence.6 [11] It may be that clause 15(e)(ii) of the Agreement operates pursuant to s 739(3) to limit the powers able to be exercised by the Full Bench such that it cannot receive further evidence on appeal under s 607(2) of the FW Act. It is unnecessary to determine that question in this matter. As is the case with a rehearing appeal, an appeal in the strict sense is concerned with the detection of error. The parties agree that, in circumstances in which the question raised on [2026] FWCFB 30 4 appeal concerns the proper construction and application of an enterprise agreement, nothing turns on any difference between a rehearing appeal and an appeal in the strict sense. [12] A distinct question then arises as to the standard of appellate review applicable to the particular decision under consideration.7 There is also no dispute between the parties that the proper construction of a legal instrument is a question of law to which there is only one true answer.8 As such, the present appeal is one to which the correctness standard applies.9 Given that permission to appeal is not required, the question for the Full Bench is simply whether the construction adopted by the Commissioner is correct or not. [13] Toll seeks to advance a case on appeal inconsistent with that which it ran before the Commissioner. At first instance, Toll contended that the Local Agreement was inconsistent with and prevailed over the provisions of the Road Transport and Distribution Award (the Award). On appeal, it submits that no inconsistency arises and clause 13.7(a) of the Award confers a right on Toll to direct employees to take RDOs in accordance with a schedule it determines. [14] Fundamental to the efficient administration of justice is the requirement that the substantial issues be settled at first instance.10 It is generally antithetical to the public interest for a party to fail to raise a matter at first instance it had every opportunity to raise and to then seek to raise the matter for the first time on appeal.11 Although the TWU concedes that it would not have led different evidence below or that it is not prejudiced by this, it will nonetheless generally be contrary to the interests of justice for a party to be permitted to conduct a case on one premise at first instance and then run a contradictory case on appeal. [15] Even after accepting that permission to appeal is not required, the TWU contended that leave should not be granted for Toll to run a different case on appeal.12 If permission to appeal was required, we would have been disinclined to grant permission. However, in the circumstances of this matter, we do not consider there is any practical alternative but to consider the argument now advanced by Toll. Although it now makes an argument which is diametrically opposed to the position it advanced before the Commissioner, the submission represents a different avenue of reasoning to arrive at the same outcome for which it contended at first instance. Where permission to appeal is not required, it is difficult to ignore an alternative argument of construction if it potentially has merit. Background [16] Toll provides freight and logistics services for Coles Supermarkets Australia Pty Ltd (Coles). As part of providing those services, it operates a distribution centre for Coles at a site at Kewdale in Western Australia (the Site). Toll employs truck drivers, covered by the Agreement, to transport products from the Site to Coles supermarkets within Western Australia (the Drivers). [17] The Agreement contains three parts. Part A contains a set of common conditions which apply to all employees to whom the Agreement applies. Part B contains a list of ‘Local Agreements’ being enterprise agreements, workplace agreements, certified agreements and other arrangements which are incorporated into the Agreement by clause 8.1. One of the Local Agreements listed in Part B is the Toll Logistics, Contract Logistics Division, Coles Western [2026] FWCFB 30 5 Australia Enterprise Agreement 2008 (the Local Agreement). Part C, which is not presently relevant, contains freight cartage agreement clauses. The Agreement also incorporates the Award in clause 6(a). The present dispute turns on the interaction between the provisions of Part A of the Agreement, the Award and the Local Agreement which deal with RDOs. [18] The Drivers work to a roster under which they accrue RDOs. Assuming a fulltime roster, a Driver would ordinarily accrue one RDO (7.6 ordinary hours) after every completed 19 days of work. Clause 13 of the Award prescribes the ordinary hours of work and permissible roster cycles of the Drivers. The ordinary hours of work for full-time Drivers are an average of 38 hours per week to be worked on a number of alternative specified bases. Relevantly, subclause 13.7(a) of the Award provides a method of working ordinary hours that includes a roster providing for RDOs: 13.7 Method of working ordinary hours Ordinary hours of work may be worked by either of the following methods: (a) Providing for rostered days off (RDOs) A roster implementing the work cycle at the depot, yard or garage will provide for RDOs, which may be either taken in accordance with the roster or accumulated. (i) A scheduled normal RDO may be changed by agreement between the employer and employee. In the absence of agreement, 48 hours’ notice of such alteration must be given to the employee. (ii) RDOs may be accumulated to a maximum of 10 days and taken or paid out at the applicable ordinary hourly rate in any combination agreed in writing between the employer and employee. … [19] Clause 4.6 of the Local Agreement also deals with RDOs and provides as follows: 4.6. Rostered Days Off 4.6.1. Rostered days off (RDO’s) are to be taken to suit the needs of the business. RDO’s shall not be taken in the two (2) busiest months of the year determined by the business 4.6.2. Employees are otherwise permitted to accumulate RDO’s and provided a minimum bank of 5 days remain available for employer/Employee, allocation blocks of 5 days may be paid, at the rate of time and half, through the payroll system. A maximum of 11 days paid out per annum. This provision shall only apply to all future accruals. Prior accruals shall not form part of this provision. 4.6.3. These can be paid at any time during the year provided one week’s notice of the payment request is given. 4.6.4. The Company will allow more than 1 consecutive RDO as long as it does not impact on the business and an experienced driver can be arranged as a replacement, if required. 4.6.5. RDO’s will not be unreasonably refused by Management. [2026] FWCFB 30 6 [20] Clause 6 of the Agreement make provision for the interaction between the Award, the Agreement and NES as follows: 6. Relationship to the Award and the NES (a) This Agreement incorporates the Award, provided that Part A of this Agreement and the Local Agreements will prevail over the Award to the extent of any inconsistency. An inconsistency will not arise simply because the Award provides a more beneficial entitlement to a Transport Worker than that contained in Part A of this Agreement. (b) This Agreement will be read and interpreted in conjunction with the NES. Certain provisions of this Agreement or of a Local Agreement may supplement the NES but nothing in this Agreement will operate so as to provide a detrimental outcome for Transport Workers as compared to an entitlement under the NES. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of any inconsistency. (c) For the avoidance of doubt Toll will ensure that no Transport Worker will lose any entitlements that they may currently have arising out of any Instrument. … [21] Clause 8 of the Agreement incorporates the Local Agreements and deals with the interaction between Part A of the Agreement and a Local Agreement in the following terms: 8. Local Agreements 8.1 Continued effect and enforcement of Local Agreements (a) The Local Agreements are incorporated into this Agreement and have effect subject to this clause 8. (b) Part A of this Agreement prevails over the Local Agreements to the extent of any inconsistency. An inconsistency will not arise simply because a Local Agreement provides a more beneficial entitlement to a Transport Worker than that contained in Part A of this Agreement. … [22] The practice had been that, if a Driver wishes to take an RDO, the Driver would seek management approval at least two weeks prior to the proposed RDO. The relevant manager decides whether to approve the RDO, having regard to the Site’s operational needs. Otherwise, Drivers have been able to accumulate and have their RDOs paid out in accordance with clause 4.6.2 of the Local Agreement. [23] In February 2025, Coles requested that Toll optimise the use of its fleet to reduce costs at the Site. In response, Toll proposed to implement a roster under which the Drivers would be scheduled to take their RDOs on a regular monthly basis during the eight months of the year (February, March and May to October) which are outside the Site’s peak periods (the RDO Schedule). The TWU, who represents Drivers at the Site, opposed the introduction of the RDO Schedule on the basis that Toll is not entitled to direct an employee to take an RDO. [2026] FWCFB 30 7 [24] Consultation between Toll, the TWU and affected Drivers at the Site failed to resolve the dispute. Toll referred the dispute to the Commission. The Commissioner was unable to resolve the dispute by conciliation and proceeded to arbitrate it. Decision under Appeal [25] At first instance, Toll argued that there was direct inconsistency between clause 4.6 of the Local Agreement and clause 13.7 of the Award. Toll submitted that, as a consequence of these inconsistencies, clause 4.6 of the Local Agreement could not be read with clause 13.7 of the Award and, therefore, pursuant to clause 6(a) of the Agreement, clause 4.6 of the Local Agreement prevailed over clause 13.7(a) of the Award to the extent it concerns how RDOs are taken. [26] Toll submitted that the opening sentence of clause 4.6.1 “Rostered days off (RDO’s) are to be taken to suit the needs of the business” confers a right on it to roster RDOs or to direct the Drivers to take the RDOs, provided that it suits the needs of its business. According to Toll, the evidence that Toll proposed the RDO Schedule in response to Coles’ request that it optimise the use of the fleet demonstrated that a genuine business need existed. [27] The TWU’s response was, in short, that clause 4.6 of the Local Agreement is directed towards the circumstances in which an employee can take an RDO or have accumulated RDOs paid out. It submitted that the clause says nothing about Toll being permitted to direct an employee to take an RDO, whether in the terms of the RDO Schedule or otherwise. [28] The Commissioner concluded that clause 4.6.1 of the Local Agreement did not confer a right on Toll to roster RDOs as it wishes for five reasons which may be summarised as follows: (a) Toll’s proposed construction did not flow easily with the balance of the clause. (b) The word ‘taken’ in clause 4.6.1 contemplates an employee availing themselves of an RDO and does not, in terms, permit Toll to direct an employee to take an RDO. (c) If Toll’s construction of the first sentence of clause 4.6.1 was accepted the second sentence would be redundant. (d) The second sentence of clause 4.6.1 makes it clear when Drivers may not take RDOs which is consistent with clause 4.6.1 as a whole being read as placing limitations on a Driver’s ability to take an RDO, rather than conferring a right for Toll to mandate the taking of RDOs. (e) Other terms in clause 4.6 refer or allude to an entitlement on the part of a Driver and placing limitations on the exercise of that entitlement, including by permitting employees to accumulate RDOs, providing a minimum period of notice of a request to have RDOs paid out, that Toll may ‘allow’ more than one consecutive RDO and that RDOs may not be unreasonably refused by Toll. [29] The Commissioner answered the question posed by the parties as follows: [49] I was asked by the parties to answer this question: Can Toll Transport Pty Ltd direct employees covered by the Toll – TWU Enterprise Agreement 2023 – 2026 and the Toll Logistics Contract Logistics Division – Coles [2026] FWCFB 30 8 Western Australia Enterprise Agreement 2008 (Employees) to take rostered days off in accordance with the planned RDO schedule? [50] For the reasons set out in this decision, the answer to that question is “No”. Consideration [30] Toll appeals the decision of the Commissioner asserting that he did not: ‘…undertake any reasoned consideration…’ as to whether subclause 4.6 of the Local Agreement can be read together or conflicts with subclause 13.7(a) of the Award as incorporated into the Agreement. As noted in his decision, it was not necessary for the Commissioner to do so given the submission of Toll before him at first instance that: We do also make reference to clause 13.7 of the agreement. It is obviously relevantly incorporated but for the submissions that sit at paragraph 21 through 34, we've made the point and we think this point is not disputed because it didn't find its way into the respondent's materials, that there is direct consistency – direct inconsistency, therefore clause 13.7(a) cannot apply. So we are left then, solidly, looking at clause 4.6 as the source of rights and obligations as it relates to this issue. [31] On appeal, in direct contradiction to its submissions before the Commissioner, Toll argues that subclause 13.7(a) of the Award and subclause 4.6 of the Local Agreement can be read sensibly together such that there is no inconsistency between the two provisions. Toll submits that clause 13.7(a) of the Award expressly confers on the employer the right to implement a roster at a depot, yard or garage which provides for RDOs which may then be taken ‘in accordance with the roster’ or accumulated to be taken outside the work cycle at another time. [32] Toll now submits that subclause 4.6 of the Local Agreement does not abrogate or displace Toll’s right in subclause 13.7(a) of the Award to require a Driver to take RDOs as part of a roster cycle but merely places a limit on when accumulated RDOs can be taken by a Driver. According to Toll, the practical result of clause 4.6.1 of the Local Agreement is that, to the extent that a Driver seeks to take an accumulated RDO, which is not a ‘scheduled normal RDO’ then the needs of the business are relevant to Toll’s consideration as to whether to approve or refuse the taking of the RDO outside the roster cycle. Toll says that subclause 4.6.1 provides Toll with a legal basis under subclause 4.6.5 of the Local Agreement to refuse to allow a Driver to take an RDO if it does not suit the needs of the business. [33] In support of this argument, Toll points to the consultation provisions in clause 14(c) of the Agreement. Toll says that the obligation to consult in relation to changes to Drivers’ regular roster or ordinary hours of work under subclause 14(c) of the Agreement is based on the premise that the employer has the power to change an employee’s regular roster or hours of work elsewhere in the enterprise agreement. According to Toll, clause 13.7(a) of the Award is the sole source of an employer’s power under the Agreement to do so and that therefore in order to avoid rendering clause 14(c) of the Agreement nugatory, it must have been intended that subclause 13.7(a) of the Award would have continued operation and effect. [2026] FWCFB 30 9 [34] In the alternative, Toll contends that subclause 4.6.1 of the Local Agreement confers a right to direct employees to take RDOs to suit the needs of the business. Toll submits that this construction is correct for the following four reasons: (a) ‘4.6.1 is expressed in the passive voice. It does not stipulate whether RDOs are to be taken to suit the needs of the business at the direction of employer or at the time requested by the employee. Rather, it presupposes that RDOs will “be taken” to suit the needs of the business. Absent any express provision regarding the initiating of the taking of the RDO, subcl 4.6.1 simply requires that RDOs be taken to the needs of the business and Toll has the power to direct the same.’ (b) ‘the evident purpose of subcl 4.6.1 is to enable Toll to ensure that RDOs are taken at a time to suit the needs of the business and not taking them during the two busiest months of the year determined by the business. To effectuate the purpose of subcl 4.6.1, Toll must have the power to direct employees to take RDOs to suit the needs of the business.’ (c) ‘the construction gives effect to the sensible operation of subcl 4.6.2 of the Local Agreement as set above. That is, employees are ‘otherwise permitted’ to accumulate RDO’s after they are taken to suit the needs of the business in accordance with 4.6.1. Further, the requirement that a minimum bank of 5 days remain available for ‘employer/Employee allocation’ expressly contemplates that an employer can direct employees to take RDOs to suit the needs of the business and that the balance can be accumulated or paid out at the discretion of the employee.’ (d) ‘this construction of subcl 4.6.1 of the Local Agreement gives subcl 14(c) of the Enterprise Agreement work to do. As set out above, the operation of subcl 14(c) proceeds on the premise that an employer has the right to direct employees to work according to a regular roster or determine their hours of work. This necessarily includes the right to determine when employees take RDOs which have accrued during a work cycle.’ [35] The Full Bench is not persuaded by either the primary or alternative arguments now advanced by Toll. [36] It is appropriate to first address the primary argument now made by Toll that clause 13.7(a) of the Award, as incorporated into the Agreement, confers a right on Toll to require employees to take RDOs in accordance with a roster it determines. Toll relies on a number of authorities in relation to the principles to be applied to the construction of terms which are incorporated into a legal instrument by reference. In a contractual context, a term which incorporates an external document into a contract is to be construed as if the terms of the incorporated document were set out in full in the contract. For example, in Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd [2005] SASC 400; (2005) 93 SASR 179, Bleby J (with whom Anderson J agreed) said:13 The fundamental principle is that where parties expressly incorporate terms into a contract, the incorporated terms must be construed as if they have been written out in full in the contract, and [2026] FWCFB 30 10 accordingly must be construed in the context of the contract into which they have been incorporated. [37] Toll also referred to a passage from the judgment of Rix LJ (with whom Brooke and Henry LLJ agreed) in Tradigrain SA v King Diamond Marine Ltd [2000] 2 Lloyd’s Rep 319 in which it was said:14 The first rule relating to the incorporation of one document’s terms into another document is to construe the incorporating clause in order to decide on the width of the incorporation … A second rule, however, is to read the incorporated wording into the host document in extenso to see if, in that setting, some parts of the incorporated wording nevertheless have to be rejected as inconsistent or insensible when read in their new context … [38] The incorporated terms will only be displaced if they are inconsistent or insensible when read with the expressly agreed terms of the instrument. The incorporated terms will generally be given operation so long as the terms are capable of being sensibly read together with the express terms as a whole.15 [39] It is not uncommon for enterprise agreements to incorporate external documents, including historical or current awards, earlier industrial agreements or policy documents. Where an enterprise agreement contains such a provision, the agreement will frequently contain a term which expressly governs the interaction between the express and incorporated terms of the agreement. In Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773; (2019) 369 ALR 704 (Maribyrnong City Council), the relevant agreement provided in clause 3.1.3 that the ‘provisions of Part A of this Agreement shall be read and applied in conjunction with the provisions of Part B’ and ‘[w]here there is any inconsistency between Part A and Part B, the provisions of Part A shall prevail’. In that context, Wheelahan J said there was some danger in importing notions of inconsistency for the purposes of s 109 of the Commonwealth Constitution and:16 That is because clause 3.1.3 of the Agreement provides - as a commencing point - that Part A shall be read and applied in conjunction with Part B. This mandate tells against construing any terms of Part B that merely qualify Part A as being inconsistent with Part A. In my view, in order that there be inconsistency between the terms of Part A and Part B, the terms must be such that they cannot sensibly or fairly be read together. Within this concept, there may be terms of Part A which demonstrate an intent to cover a particular subject-matter to the exclusion of corresponding terms in Part B. In these events, the terms of Part A prevail. [40] The approach to be adopted to detecting inconsistency will ultimately depend on the terms and purpose of the provision dealing with incorporation.17 The language of clause 6(a) of the Agreement differs from the term considered in Maribyrnong City Council. Although the Award is incorporated, no express provision is made to the effect that Part A or the Local Agreements must be read ‘in conjunction with’ the Award. [41] Furthermore, the second sentence of clause 6(a) provides some indication as to what is meant by the term ‘inconsistent’ by indicating that inconsistency will not arise simply because the Award provides a more beneficial entitlement to a transport worker than that contained in Part A of the Agreement. That suggests that the purpose of incorporating the Award into the Agreement was to ensure that entitlements contained in the Award which are not dealt with in the Agreement or dealt with in the Agreement in a manner that is less beneficial to employees, [2026] FWCFB 30 11 are not excluded by the Agreement. Arguably, inconsistency may arise under clause 6(a) of the Agreement in broader circumstances than were contemplated by Wheelahan J in Maribyrnong City Council. [42] However, it is unnecessary to express a final view in relation to that question. We are satisfied that clause 4.6 of the Local Agreement is inconsistent with and prevails over clause 13.7(a) of the Award, for the purposes of clause 6(a) of the Agreement, insofar as it deals with the taking and accumulation of RDOs. We hold this view whatever approach is adopted to detecting inconsistency. To be clear, assuming the approach contended for by Toll is to be adopted, we do not consider that clause 13.7(a) of the Award and clause 4.6 of the Local Agreement can be reasonably or sensibly read together. [43] Clause 4.6 of the Local Agreement is premised on an employee being entitled to elect to take or accumulate RDOs subject to express restrictions referrable to the business needs, notice requirements and a right of reasonable refusal by the employer. That is plainly inconsistent with the employer having an entitlement to simply roster RDOs at any time of its choosing. There is also direct inconsistency in relation to the accumulation of RDOs as between clause 13.7(a)(i) of the Award and clauses 4.6.2 to 4.6.5 of the Local Agreement and when RDOs may be taken, as between clause 13.7(a)(ii) of the Award and clause 4.6.1 of the Local Agreement. The inconsistency between clause 4.6 of the Local Agreement and clause 13.7(a) of the Award is demonstrated by various aspects of the provisions, including: (a) The first sentence of clause 4.6.1 of the Local Agreement provides that RDOs ‘are to be taken to suit the needs of the business’ and clause 4.6.5 provides that RDOs will not be ‘unreasonably refused’. Both provisions assume that an employee can request to take an RDO on a particular date of their choosing and that Toll may refuse the request if it does not suit the needs of the business or other grounds exist upon which the request might be reasonably refused. Those provisions are inconsistent with clause 13.7(a) of the Award which provides that RDOs are to be taken in accordance with the roster, clause 13.7(a)(i) which provides that RDOs can only be changed by agreement with Toll and that Toll can unilaterally change a scheduled RDO with 48 hours notice. (b) The second sentence of clause 4.6.1 of the Local Agreement provides that RDOs shall not be taken in the two busiest months of the year determined by the business. That provision underlines that employees are able to elect to take an RDO at the time of their choosing subject to the constraints imposed by the clause. That is inconsistent with Toll having the capacity to roster RDOs as it thinks fit. The capacity of Toll to nominate two months during which RDOs are not to be taken is of no utility if it can simply roster employees to take RDOs on the dates it specifies. (c) Clause 4.6.2 of the Local Agreement provides that employees may otherwise accumulate RDOs and for unlimited accumulation of RDOs. This provision is inconsistent with clause 13.7(a)(ii) of the Award which provides for a maximum accumulation of 10 days of RDOs. (d) Clause 4.6.4 of the Local Agreement which imposes an obligation on Toll to [2026] FWCFB 30 12 allow more than one consecutive RDO subject to the taking of the RDO not impacting on the business and an experienced driver being available. Again, this is inconsistent with clause 13.7(a) of the Award which provides that RDOs are to be taken in accordance with the roster and inconsistent with RDOs being taken at the election of an employee subject to the limitations in the clause. [44] Clause 4.6 of the Local Agreement when read as a whole sets out parameters for Drivers to take, accrue or be paid out RDOs which provides for a complete and bespoke regime for the taking accrual and payout of RDOs. Those parameters are that: (a) RDO are to be taken to suit the needs of the business; (b) An RDO must not occur in the two busiest months as determined by Toll; (c) Employees can accrue and be paid out RDOs; (d) Employees can take consecutive RDOs provided it does not impact on the business and a replacement driver can be identified; and (e) RDOs will not be unreasonably refused by management. [45] None of these parameters, nor clause 4.6.5, would be necessary or serve any purpose if Toll, as it submits it does, has a right to schedule RDOs at its discretion. Toll would simply roster the RDOs as it proposed. [46] As clause 4.6 of the Local Agreement is directly inconsistent with clause 13.7(a) of the Award then clause 4.6 of the Local Agreement prevails over clause 13.7(a) of the Award and clause 13.7(a) of the Award is rendered inoperative by operation of 6(a) of the Agreement. Clause 13.7(a) of the Award, as incorporated into the Agreement, does not confer an entitlement on Toll to direct Drivers to take RDOs in accordance with a roster. [47] The alternative contention advanced by Toll is that clause 4.6 of the Local Agreement confers a right on Toll to direct employees to take RDOs to suit the needs of the business. It is sufficient to dispose of this argument to say that we entirely agree with the reasons given by the Commissioner for concluding that clause 4.6 of the Local Agreement does not confer a right on Toll to direct employees to take RDOs. It is, however, appropriate to briefly address the submissions of Toll on appeal in relation to the construction of clause 4.6 of the Local Agreement. [48] First, the first sentence of clause 4.6.1 is not framed as a conferral of power, but rather as a limitation on when RDOs are to be taken. Elsewhere in the Agreement where a power is conferred on Toll, the language of the clause or sub clause reflects such a conferral.18 Contrary to the submission of Toll, the use of the passive voice does not suggest that the clause is intended to confer a power on Toll to direct employees to take RDOs on any date it specifies. For the reasons we have given, the language of the clause suggests that its purpose is to limit when an employee is entitled to take an RDO, rather than permitting Toll to direct an employee to take an RDO on a particular date. [49] Second, Toll is correct to submit that the purpose of clause 4.6.1 is to enable Toll to ensure that RDOs are taken at a time to suit the needs of the business and which does not coincide with the two busiest months for the business. However, when read with clause 4.6.5, that purpose is achieved by permitting Toll to refuse a request by an employee to take an RDO [2026] FWCFB 30 13 if it has reasonable grounds to do so, and by preventing an employee taking an RDO in the nominated busiest months, rather than by conferring a right on Toll to direct when RDOs are taken. The first sentence of clause 4.6.1 cannot be intended to confer a power for Toll to direct Drivers to take RDOs. If that were the case, the second sentence of clause 4.6.1 would be entirely unnecessary. [50] Third, the capacity in clause 4.6.2 to accumulate RDOs is inconsistent with a right of Toll to schedule the taking of RDOs. Clause 4.6.2 expressly permits employees to elect to accumulate, rather than take, RDOs in a manner which cannot be reconciled with Toll having a right to direct employees to take RDOs. Toll’s submission that the requirement that a minimum bank of 5 days remain available for ‘employer/Employee allocation’ supports its position misreads clause 4.6.2. A comma appears after the words ‘employee/Employer’. The reference to ‘allocation’ provides for the method of payment for blocks of 5 days. [51] Fourth, Toll submits that its construction of clause 4.6.1 of the Local Agreement gives the consultation obligation in clause 14(c) of the Agreement work to do. Clause 14(c) of the Agreement provides for the provision of information and for employees to give their views about a proposed change to regular rosters or ordinary hours of work generally. Leaving to one side whether a provision of the Agreement which was made in 2023 could influence the proper construction of the Local Agreement which was made in 2008, clause 14(c) has work to do in relation to proposed changes to rosters or ordinary hours of work whether or not Toll is entitled to direct employees to take RDOs. The argument does not assist Toll’s position. [52] For the reasons we have given, Toll has a right of appeal and permission to appeal is not required. However, the conclusion of the Commissioner was correct, and the appeal should be dismissed. [53] The Full Bench orders that the appeal is dismissed. VICE PRESIDENT Appearances: M Seck, of counsel, instructed by Kingston Reid for Toll Transport Pty Ltd. P Boncardo, of counsel, instructed by L Slaney for the Transport Workers’ Union of Australia. Hearing details: 19 December 2025. [2026] FWCFB 30 14 Sydney (in person). Printed by authority of the Commonwealth Government Printer <PR796654> 1 Toll Transport Pty Limited v Transport Workers’ Union of Australia [2025] FWC 2858 2 See, for example, Victoria Police Force v Police Federation of Australia [2009] AIRCFB 146; (2009) 178 IR 275 at [13]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Silcar Pty Ltd [2011] FWAFB 2555; (2011) 208 IR 33 at [28]; DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557; (2013) 237 IR 180 at [53]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [50]. 3 Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths [2013] FWCFB 2814; (2013) 232 IR 255 at [22]; Vendrig v Ausgrid Pty Ltd [2021] FWCFB 370 at [24]; Ricegrowers Ltd (t/as SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd) v United Workers’ Union [2022] FWCFB 205 at [46]-[47]; PHI (International) Australia Pty Ltd v Nash [2024] FWCFB 396; (2024) 333 IR 366 at [19]. 4 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2003] HCA 47; (2000) 203 CLR 194 at [17] (Gleeson CJ, Gaudron and Hayne JJ). 5 Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [53], [55] (Gageler CJ, Gordon and Beech- Jones J) and [83] (Edelman J). 6 Allenz v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [22] (Gaudron, McHugh, Gummow and Hayne JJ). 7 Helensburgh Coal v Bartley [2025] HCA 29; (2025) 99 ALJR 1185 at [54] (Gageler CJ, Gordon and Beech-Jones JJ) and [141] (Steward J). 8 Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; (2013) 85 NSWLR 1 at [61] (Allsop P). 9 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [46] and [48]-[49] (Gageler J); FreshFood Management Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2023] FWCFB 97 at [29]; Independent Education Union v Peregian Beach Community College Ltd [2025] FWCFB 1 at [11]. 10 Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilso, Brennan and Dawson JJ). 11 Construction, Forestry, Maritime, Mining and Energy Union v Townsville Marine Logistics Pty Ltd [2019] FWCFB 3589 at [23]; Abulamoun v Jackson [2020] FWCFB 5593 at [13]. 12 By reference to VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ); Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163; (2023) 300 FCR 170 at [263] (Katzmann J). 13 Coopers Brewery Ltd v Lion Nathan Australia Pty Ltd [2005] SASC 400; (2005) 93 SASR 179 at [26] (Bleby J). 14 Tradigrain SA v King Diamond Marine Ltd [2000] 2 Lloyd’s Rep 319 at 335-336 (Rix LJ). 15 See also Doggett v Commonwealth Bank of Australia [2015] VSCA 351; (2015) 47 VR 302 at [122] (McLeish JA (Whelan JA and Garde AJA agreeing) and Westgem Investments Pty Ltd v Commonwealth Bank of Australia [2022] WASC 132 at [836] (Murphy JA). 16 Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773; (2019) 369 ALR 704 at [53] (Wheelahan J). See also Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 39 at [30]-[33] (Lee J). 17 Maribyrnong City Council v Australian Municipal, Administrative, Clerical and Services Union [2019] FCA 773; (2019) 369 ALR 704 at [43] (Wheelahan J); Construction, Forestry and Maritime Employees Union v DP World Melbourne Limited T/A DP World Melbourne [2024] FWCFB 317 at [75]. 18 See, for example, clauses 4.4.5, 7.1.8, 9.1.1 and 9.9.3.