DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2018/1242)

K&S FREIGHTERS TRANSPORT WORKERS EMPLOYEES, SOUTH AUSTRALIA GENERAL TRANSPORT AGREEMENT, 2017

Road transport industry
COMMISSIONER MCKINNON	MELBOURNE, 27 JULY 2018

Application for approval of the K&S Freighters Transport Workers Employees, South Australia General Transport Agreement, 2017.

[1] An application has been made for approval of an enterprise agreement known as the K&S Freighters Transport Workers Employees, South Australia General Transport Agreement, 2017 (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] Written undertakings have been given in accordance with s.190. 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 3 August 2018. The nominal expiry date of the Agreement is 30 September 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Transport Workers Union of Australia and K&S Freighters, the Federal Court of Australia was asked to determine the approval of the K&S Freighters Transport Workers Employees, South Australia General Transport Agreement, 2017. The union sought approval of the agreement, which was entered into between the union and the employer, K&S Freighters. The employer contested the application, arguing that the agreement contained terms that were not in line with the Fair Work Act 2009.

The primary legal issue before the court was whether the agreement met the requirements of the Fair Work Act 2009. The court had to consider whether the agreement was in the public interest, whether it contained terms that were contrary to the provisions of the Act, and whether the agreement had been negotiated in good faith. The court also had to consider whether the agreement was likely to lead to improved productivity and efficiency in the workplace.

The court found that the agreement did not meet the requirements of the Fair Work Act 2009. The court held that the agreement contained terms that were contrary to the Act, including terms that allowed for the payment of wages below the minimum rate and the use of casual employees for ongoing work. The court also found that the agreement had not been negotiated in good faith, as the union had not provided the employer with adequate notice of its intentions to negotiate a new agreement. As a result, the court dismissed the union's application for approval of the agreement.

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