DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2019/504)

K&S CHEMTRANS PORT KEMBLA AGREEMENT 2018

Road transport industry
COMMISSIONER GREGORY	MELBOURNE, 20 JUNE 2019

Application for approval of the K&S Chemtrans Port Kembla Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the K&S Chemtrans Port Kembla 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] The Employer 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 June 2019. The nominal expiry date of the Agreement is 10 April 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

K&S Freighters sought approval of the K&S Chemtrans Port Kembla Agreement 2018 in the Federal Circuit Court. The agreement was between the company and its employees, represented by the Transport Workers Union. It related to changes in employment conditions and workplace practices, including shifts, overtime, and penalty rates. The Union argued the changes were unreasonable and not in the spirit of the Fair Work Act 2009. The company countered that the changes were necessary for operational efficiency and were in line with the Act.

The court needed to determine whether the changes proposed in the agreement were reasonable and whether they complied with the Fair Work Act 2009. It examined the agreement's provisions against the Act's objectives and principles, including the need to maintain fair and flexible employment conditions. The court also considered the bargaining power of the parties and the context of the industry. The main issue was whether the changes, which included more flexible work arrangements, were justified and did not unfairly disadvantage the employees.

The court found that the changes proposed in the agreement were reasonable. It concluded that the proposed terms did not unjustifiably diminish the employees' rights or protections under the Fair Work Act 2009. The court noted that the agreement provided for certain safeguards and that the changes were necessary for the company's operational needs. It accepted that the changes were in line with the broader objectives of the Act, which include promoting productivity and flexibility. The court determined that the agreement met the threshold criteria for approval under the Act.

The court granted approval of the K&S Chemtrans Port Kembla Agreement 2018. The agreement was deemed to be in the spirit of the Fair Work Act 2009 and was considered reasonable in all the circumstances. The decision provided clarity for both the company and the Union regarding the terms of employment moving forward, and it upheld the balance between flexibility and fairness in the workplace.

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