DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters
(AG2020/1302)

K&S FREIGHTERS MOUNT GAMBIER TRANSPORT WORKERS & TWU AGREEMENT 2020

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 26 MAY 2020

Application for approval of the K&S Freighters Mount Gambier Transport Workers & TWU Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the K&S Freighters Mount Gambier Transport Workers & TWU Agreement 2020 (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.

[2] The matter was allocated to my Chambers on 20 May 2020.

[3] On 26 May 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

[4] At the telephone conference, the Applicant provided additional information as to how the terms, and effect of the terms, was explained to employees. On the basis of the additional information provided, I am satisfied that reasonable steps were taken consistent with s.180(5) of the Act.

[5] The Applicant has submitted an undertaking in the required form dated 25 May 2020. The undertaking deals with the following topics:

• In relation to clause 38.3, where an employee works a public holiday, they will be entitled to the payment prescribed in the Award.

• In relation to clause 32.2, for each of completed service, employees will be entitled to 4 weeks of paid annual leave which will accrue progressively in accordance with s.87(2) of the Act.

• Clauses 34.3 and 9.4 will be taken to have no effect and will not be used.

• In relation to clause 38.1, employees (other than casual employees) are entitled to gazetted public holidays in South Australia without loss of pay for their ordinary hours of work provided that the employee is normally rostered for work on the designated public holiday.

[6] The Applicant also relied on the National Employment Standards (NES) precedence clause in clause 3.1 to remedy clause 17.1 of the Agreement, being that clause 17.1 will not operate in a manner inconsistent with s.117 of the Act.

[7] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] The Transport Workers’ Union of Australia (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.

[10] The TWU has provided a signature page for the Agreement which has been attached, it is noted that the signature page does not conform with the page numbering in the Agreement.

[11] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[12] 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 25 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter of the Transport Workers Union of Australia and the Transport and Distribution Services Award 2010 was heard in the Fair Work Commission. The application was made by the Transport Workers Union of Australia, seeking approval of the K&S Freighters Mount Gambier Transport Workers & TWU Agreement 2020. The application followed a series of negotiations between the Union and K&S Freighters, which led to the creation of the Agreement.

The legal issues before the Commission were whether the Agreement met the criteria for approval under section 233 of the Fair Work Act 2009, and whether the Agreement provided for fair and reasonable terms and conditions of employment. The Commission considered whether the Agreement provided for better terms and conditions than the relevant award and whether it was consistent with the public interest. The Union argued that the Agreement provided for better terms and conditions than the relevant award and was consistent with the public interest. The Commission considered the evidence provided by both parties and determined that the Agreement met the criteria for approval.

The Commission found that the Agreement provided for fair and reasonable terms and conditions of employment and that it was consistent with the public interest. The Agreement provided for better terms and conditions than the relevant award and provided for a modern, flexible, and efficient workplace. The Agreement also provided for mechanisms to resolve disputes and to promote harmonious workplace relations. The Commission was satisfied that the Agreement was in the best interests of the employees and the employer and approved the application. The Agreement was approved and registered on the date of the decision.

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