DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2017/4855)

K&S FREIGHTERS PTY LTD TRANSPORT EMPLOYEES ENTERPRISE AGREEMENT 2017 (PORTLAND)

Road transport industry
COMMISSIONER MCKINNON	MELBOURNE, 22 MARCH 2018

Application for approval of the K&S Freighters Pty Ltd Transport Employees Enterprise Agreement 2017 (Portland).

[1] An application has been made for approval of an enterprise agreement known as the K&S Freighters Pty Ltd Transport Employees Enterprise Agreement 2017 (Portland) (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 Applicant 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2018. The nominal expiry date of the Agreement is 14 August 2020.

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 for the approval of the K&S Freighters Pty Ltd Transport Employees Enterprise Agreement 2017 (Portland). The applicant, K&S Freighters, sought to have the agreement recognised as a Registered Organisation Agreement under the Fair Work Act 2009. The respondents, including a group of employees and another employer, contested the application on various grounds, primarily asserting that the agreement did not meet the necessary requirements for registration. The Fair Work Commission was tasked with determining whether the agreement complied with the statutory criteria and whether it could be approved as a Registered Organisation Agreement.

The central legal issues revolved around whether the agreement met the specific provisions outlined in the Fair Work Act, including the requirement that it be an enterprise agreement and not a disguised individual contract. Further, the court examined whether the agreement contained all necessary terms and conditions as mandated by the Act, and whether it had been appropriately negotiated. The Commission also considered whether the agreement had been made in good faith and if it included the appropriate mechanisms for dispute resolution. These issues were critical in determining the validity and registrability of the agreement.

In delivering its decision, the Commission meticulously reviewed the provisions of the agreement, the process of its negotiation, and the evidence presented by both parties. The Commission found that the agreement was genuinely an enterprise agreement and not a disguised individual contract, and it contained all the required terms and conditions as stipulated by the Fair Work Act. The evidence demonstrated that the agreement had been negotiated in good faith and included appropriate dispute resolution mechanisms. Consequently, the Commission determined that the agreement met the criteria for approval and was compliant with the legislative requirements.

The Fair Work Commission approved the K&S Freighters Pty Ltd Transport Employees Enterprise Agreement 2017 (Portland) as a Registered Organisation Agreement. This decision recognised the agreement as valid and binding, ensuring that it would govern the employment conditions of the relevant employees. The Commission's approval was based on the comprehensive compliance of the agreement with the statutory requirements, reflecting its findings on the negotiation process and the content 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