K&S Freighters
[2022] FWCA 3003
•31 AUGUST 2022
| [2022] FWCA 3003 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
K&S Freighters
(AG2022/3496)
K&S Energy South Australian Tankers Agreement 2022
| Road transport industry | |
| COMMISSIONER PLATT | ADELAIDE, 31 AUGUST 2022 |
Application for approval of the K&S Energy South Australian Tankers Agreement 2022
An application has been made for approval of an enterprise agreement known as the K&S Energy South Australian Tankers Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by K&S Freighters (the Applicant). The agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 26 August 2022 and was determined on the papers.
It is noted that there were two deficiencies in the Notice of Employee Representations Rights (NERR) that was issued by the Applicant. The first deficiency was that the title of the Agreement in the NERR (“K&S Energy Tankers Agreement 2021”) differed from the Agreement title as provided in the Agreement (“K&S Energy South Australian Tankers Agreement 2022”). The second deficiency was that whilst the Agreement and form F17 indicate that the Road Transport and Distribution Award 2020 (Road Transport Award) and the Road Transport (Long Distance Operations) Award 2020 (the Long Distance Award) apply, the NERR only references the Road Transport Award.
The Applicant made submissions as to why I should exercise my discretion under s.188(2) of the Act to approve the Agreement despite what the Applicant contends were minor procedural or technical errors. The Applicant contended that the discrepancy between the name of the Agreement on the NERR and the Agreement was an administrative oversight which caused no confusion, and as such, no employee was disadvantaged. In respect of the Award coverage, the Applicant noted that the reference to the Road Transport Award was to convey that the Agreement would only apply to Heavy Vehicle Drivers and not management or clerical staff, and that the occupations listed in the two Awards are substantially similar.
The Transport Workers’ Union (TWU), a bargaining representative covered by the proposed agreement, supported the Applicant’s submission, and noted that the NERR deficiencies outlined above had no negative effect on employees.
I do not believe that the NERR deficiencies outlined above had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.
The TWU, 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) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.
COMMISSIONER
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