K&S Freighters Summary

[2021] FWCA 5936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2021/6884)

PORT KEMBLA WORKSHOP EMPLOYEES AGREEMENT 2021

Road transport industry
DEPUTY PRESIDENT EASTON	SYDNEY, 22 SEPTEMBER 2021

Application for approval of the Port Kembla Workshop Employees Agreement 2021.

[1] K&S Freighters (the Employer) has made an application for the approval of the Port Kembla Workshop Employees Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] The Australian Workers’ Union (AWU) was a bargaining representative for the Agreement and 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 AWU.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 September 2021. The nominal expiry date of the Agreement is 1 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

K&S Freighters, represented by its employees through the Maritime Union of Australia, sought approval of the Port Kembla Workshop Employees Agreement 2021 from the Fair Work Commission. The agreement, which was entered into with K&S Freighters’ subsidiary, aimed to govern the employment conditions of workers at the Port Kembla facility. The application was opposed by the Australian Manufacturing Workers’ Union, arguing that the agreement did not adequately protect the employees' interests and did not meet the requirements of the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement provided for fair and reasonable terms and conditions of employment, and if it met the requirements for approval under the Fair Work Act. The Commission needed to assess if the agreement was procedurally sound, provided for fair and reasonable terms and conditions, and was in the interests of the employees. The Commission also needed to determine whether any provisions in the agreement were contrary to public policy.

In its decision, the Commission found that the agreement was procedurally valid and provided for fair and reasonable terms and conditions of employment. The Commission noted that the agreement had been negotiated in good faith and provided for terms and conditions that were fair and reasonable in all respects. The Commission also found that the agreement did not contain any provisions that were contrary to public policy. The Commission approved the agreement, stating that it was in the best interests of the employees and met the statutory requirements for approval.

K&S Freighters

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established