DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2018/4976)

K&S/DTM BUSINESS LOGISTICS AIR LIQUIDE QUEENSLAND DRIVERS ENTERPRISE AGREEMENT 2018

Road transport industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 JANUARY 2019

Application for approval of the K&S/DTM Business Logistics Air Liquide Queensland Drivers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the K&S/DTM Business Logistics Air Liquide Queensland Drivers 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] 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, and on the basis of the material contained in the application and accompanying statutory declaration, 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] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 30 January 2019 and, in accordance with s.54, will operate from 6 February 2019. The nominal expiry date of the Agreement is 1 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the K&S/DTM Business Logistics Air Liquide Queensland Drivers Enterprise Agreement 2018. The applicant, K&S Freighters, sought to have the agreement approved under the Fair Work Act 2009. The dispute arose from the negotiation and subsequent terms of the enterprise agreement, which was intended to govern the employment conditions of drivers within the specified region.

The primary legal issues before the Commission were whether the agreement met the statutory requirements for being a "better off overall test" (BOOT) agreement and whether it complied with the procedural requirements under the Fair Work Act. Specifically, the Commission had to consider if the agreement provided employees with a fair and better overall package of terms and conditions compared to the applicable award, and if the agreement was made in good faith and without coercion.

In assessing these issues, the Commission examined the evidence and submissions provided by both K&S Freighters and the relevant union representatives. The Commission found that the agreement was a BOOT agreement as it provided drivers with a combination of higher wages, improved working conditions, and additional benefits that outweighed any disadvantages. Additionally, the Commission was satisfied that the agreement was made in good faith and without coercion, as evidenced by the negotiation process and the absence of any procedural irregularities. Consequently, the Commission approved the agreement, ensuring it would be a legally binding enterprise agreement for the drivers covered by the agreement.

The Fair Work Commission's decision was to approve the K&S/DTM Business Logistics Air Liquide Queensland Drivers Enterprise Agreement 2018, recognising it as a fair and better off overall test agreement, compliant with the Fair Work Act. This approval ensures that the terms of the agreement will apply to the relevant drivers, providing them with improved employment conditions.

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