DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2018/2930)

KSF AERO REFUELLERS LD DRIVERS AGREEMENT 2018

Road transport industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 17 SEPTEMBER 2018

Application for approval of the KSF Aero Refuellers LD Drivers Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the KSF Aero Refuellers LD Drivers 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement was approved on 17 September 2018 and, in accordance with s.54, will operate from 24 September 2018. The nominal expiry date of the Agreement is 30 April 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by K&S Freighters for approval of the KSF Aero Refuellers LD Drivers Agreement 2018. The applicants sought to have the agreement registered with the Fair Work Commission under the Fair Work Act 2009. The dispute centred on whether the agreement was an appropriate mechanism to ensure fairness and flexibility in the workplace for the employees covered by the agreement.

The legal issues before the Commission included whether the agreement complied with the requirements of section 230 of the Fair Work Act, including the ‘better off overall test’ (BOOT). The Commission had to consider whether the agreement provided for terms and conditions that were no worse than the applicable awards or registered agreements, and whether it contained a BOOT clause ensuring that employees would be at least as well off under the agreement as they would have been under the relevant award or agreement. The Commission also had to assess whether the agreement was genuinely negotiated and whether it complied with the formal requirements for registration.

The Fair Work Commission determined that the agreement met the requirements for approval. The Commission found that the agreement contained a BOOT clause and that employees would be better off overall under the agreement. The Commission was satisfied that the agreement was genuinely negotiated and complied with the formal requirements for registration. The Commission approved the agreement and registered it under the Fair Work Act.

The Commission made an order approving and registering the KSF Aero Refuellers LD Drivers Agreement 2018 under section 230 of the Fair Work Act. The agreement is now a registered agreement and will apply to the employees covered by it, replacing any applicable awards or registered agreements.

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