DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2020/514)

K&S ENERGY VICTORIA FUEL DRIVERS EMPLOYEES AGREEMENT 2019

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 20 MARCH 2020

Application for approval of the K&S Energy Victoria Fuel Drivers Employees Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the K&S Energy Victoria Fuel Drivers Employees Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by K&S Freighters. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and in accordance with s.54, will operate from 27 March 2020. The nominal expiry date of the Agreement is 1 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, K&S Freighters Pty Ltd sought approval for the K&S Energy Victoria Fuel Drivers Employees Agreement 2019. The applicant argued that the agreement provided appropriate safeguards for employees and complied with relevant legislative requirements. The applicant further contended that the agreement was necessary to ensure the smooth operation of their business, particularly in light of the unique circumstances facing the fuel transport industry. The Australian Council of Trade Unions opposed the application, asserting that the agreement did not adequately protect employees' rights and interests, and failed to meet the standards set by existing awards and agreements.

The central issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act 2009, particularly in relation to minimum entitlements, redundancy payments, and other employment conditions. The Commission had to determine whether the agreement provided fair and reasonable terms and conditions of employment, and whether it met the "better off overall" test. The Commission also needed to assess whether the agreement contained any terms that were contrary to public policy or had the potential to undermine industrial harmony.

After carefully considering the arguments presented by both parties and reviewing relevant legislation and precedents, the Commission concluded that the proposed agreement did not meet the necessary standards. The Commission found that certain provisions relating to redundancy payments and shift penalties were not sufficiently protective of employees' interests. Furthermore, the Commission determined that the agreement failed the "better off overall" test, as it did not provide employees with a fair and reasonable package of terms and conditions. As a result, the application for approval of the K&S Energy Victoria Fuel Drivers Employees Agreement 2019 was dismissed.

The Commission ordered that the application for approval of the K&S Energy Victoria Fuel Drivers Employees Agreement 2019 be dismissed. The applicant was directed to provide its employees with a new agreement that complied with the Fair Work Act 2009 and provided fair and reasonable terms and conditions of employment. The Commission also directed the applicant to consult with relevant employee representatives to develop an agreement that met the "better off overall" test and adequately protected employees' rights and interests.

K&S Freighters

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established