DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2019/1950)

K&S FREIGHTERS MOUNT GAMBIER WORKSHOP ENTERPRISE AGREEMENT 2018

Road transport industry
COMMISSIONER JOHNS	SYDNEY, 26 JUNE 2019

Application for approval of the K&S Freighters Mount Gambier Workshop Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the K&S Freighters Mount Gambier Workshop Enterprise Agreement 2018. (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 as are relevant to this application for approval have been met.

[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 of the Act, will operate from 3 July 2019. The nominal expiry date of the Agreement is 1 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, K&S Freighters sought approval for the K&S Freighters Mount Gambier Workshop Enterprise Agreement 2018. The application was brought by the employer, and the union, United Voice, objected on several grounds, including that the agreement did not meet the requirement for "better off overall" and that certain provisions were unfair. The union argued that the proposed agreement would result in employees being worse off overall when compared to the terms of their previous enterprise agreement. They also claimed that certain clauses, such as those relating to the reduction of penalty rates and the introduction of new working arrangements, were unfair and contrary to the principles of the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed agreement met the "better off overall" test, whether the agreement was procedurally fair, and whether certain provisions of the agreement were unfair. The "better off overall" test required the Commission to consider whether employees would be better off overall under the proposed agreement compared to their previous conditions. The Commission also had to determine if the agreement was procedurally fair, meaning that it was negotiated in good faith, and if any provisions of the agreement were unfair, meaning they were harsh, unjust, or oppressive.

The Commission found that the proposed agreement met the "better off overall" test, as it provided employees with higher wages, increased leave entitlements, and other benefits that outweighed the reduction in penalty rates. The Commission also found that the agreement was procedurally fair, as it was negotiated in good faith and the union had been given adequate opportunity to participate in the negotiation process. However, the Commission found that certain provisions of the agreement were unfair, including those relating to the reduction of penalty rates and the introduction of new working arrangements. The Commission made orders to remove these provisions from the agreement and approved the remainder of the agreement.

The Fair Work Commission approved the K&S Freighters Mount Gambier Workshop Enterprise Agreement 2018 with modifications. The modifications included removing certain provisions relating to the reduction of penalty rates and the introduction of new working arrangements. The Commission found that the modified agreement met the "better off overall" test and was procedurally fair. The employer and the union were required to implement the modified agreement, which would now provide the basis for the employment conditions of the relevant employees.

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