K&S Freighter Pty Ltd T/A K&S Freighter Pty Ltd

[2023] FWCA 876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighter Pty Ltd T/A K&S Freighter Pty Ltd

(AG2023/609)

SOUTH WEST WORKSHOP WA AGREEMENT 2023

Vehicle industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 4 MAY 2023

Application for approval of the South West Workshop WA Agreement 2023

K&S Freighter Pty Ltd T/A K&S Freighter Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the South West Workshop WA Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

The Agreement was approved on 4 May 2023 and, in accordance with s 54, will operate from 11 May 2023. The nominal expiry date of the Agreement is 1 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

K&S Freighter Pty Ltd, trading as K&S Freighter, applied to the Fair Work Commission for the approval of the South West Workshop WA Agreement 2023. The application was made under the Fair Work Act 2009, seeking to have the agreement registered as a registered agreement. The dispute centred on whether the agreement met the requirements for registration, including whether it was a genuine agreement, provided for the determination of employees’ terms and conditions of employment, and contained the minimum terms and conditions as prescribed by the Fair Work Act. The parties involved in the agreement were K&S Freighter Pty Ltd, as the employer, and the transport industry employees represented by the Transport Workers Union of Australia.

The legal issues before the Commission included determining whether the agreement was a genuine agreement reached through a process of genuine bargaining. The Commission also had to consider whether the agreement provided for the determination of terms and conditions of employment, and whether it contained the minimum terms and conditions as required by the Fair Work Act. Furthermore, the Commission assessed whether the agreement met the requirements for registration, including whether it complied with the provisions of the Fair Work Act and whether it was fair and reasonable.

In its decision, the Commission found that the South West Workshop WA Agreement 2023 was a genuine agreement reached through a process of genuine bargaining. The agreement provided for the determination of employees’ terms and conditions of employment and contained the minimum terms and conditions as prescribed by the Fair Work Act. The Commission considered the evidence and submissions provided by both parties and concluded that the agreement was fair and reasonable. The Commission approved the agreement and ordered it to be registered as a registered agreement.

The Commission's final orders included the approval and registration of the South West Workshop WA Agreement 2023 as a registered agreement under the Fair Work Act. The agreement was to take effect from the date of registration and apply to the employees represented by the Transport Workers Union of Australia who were employed by K&S Freighter Pty Ltd. The parties were bound by the terms and conditions of the agreement, which provided for the determination of their employment terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established