K&S Freighters Pty Ltd

[2025] FWCA 129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2024/4745)

DTM WA FREMANTLE FUEL TRANSPORT AGREEMENT 2024

Road transport industry
COMMISSIONER LIM	PERTH, 14 JANUARY 2025

Application for approval of the DTM WA Fremantle Fuel Transport Agreement 2024.

K&S Freighters Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the DTM WA Fremantle Fuel Transport Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Part D, Clause 3.8 provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies; however, it appears to be silent in relation to compassionate leave for stillbirth/miscarriage as is provided by ss 104(1)(b) and 104(1)(c) of the Act.
(b)Part B, Clause 12.1 provides that an employee will be deemed to have abandoned his or her employment when absent for up to five rostered days/shifts without the consent of the company. This Clause does not specify the date upon which notice of termination shall take place from. This may be inconsistent with the NES at s 117 of the Act.
(c)Part B, Clause 12.2 provides that where an employee abandons their employment, they may be subject to disciplinary action. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s 117 of the Act. This may be inconsistent with the NES at section 117 of the Act.
(d)Part B, Clause 15.2.1 states that where an employee fails to give the required notice in relation to resignation, or leaves before the end of the notice period, that employee forfeits the entitlement to any monies otherwise owing to the employee except to the extent those monies exceed the ordinary wages for the period of notice. This may be contrary to ss 117-123 of the Act which provide that employees are entitled to be paid out any monies and/or entitlements owing to them upon termination.

However, I am satisfied that under clause Part D, Clause 1.1.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2), the workplace delegates’ rights term in Clause 29A of the Road Transport and Distribution Award 2020 is taken to be a term of the Agreement.

The Agreement was approved on 14 January 2025 and, in accordance with s 54, will operate from 21 January 2025. The nominal expiry date of the Agreement is 30 May 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The case before the court involved K&S Freighters Pty Ltd, which applied for the approval of the DTM WA Fremantle Fuel Transport Agreement 2024. The agreement sought to regulate the transport of fuel in the Fremantle area and aimed to set out the terms and conditions under which fuel could be transported by road. The parties involved in the application process included K&S Freighters, the Fremantle Port Authority, and various stakeholders within the fuel transport industry. The court was tasked with determining whether the proposed agreement complied with relevant legislative requirements and if it served the public interest.

The primary legal issue before the court was whether the proposed agreement sufficiently met the criteria set out in the relevant legislation for approving such transport agreements. Specifically, the court had to assess whether the agreement provided for fair and reasonable access to the Fremantle port for fuel transport, whether it ensured the safety and efficiency of fuel transport operations, and whether it aligned with broader public policy objectives. Furthermore, the court needed to consider submissions from stakeholders and determine if the agreement addressed any identified concerns or risks.

In delivering its decision, the court carefully examined the provisions of the proposed agreement and the submissions made by the parties. The court found that the agreement was comprehensive and addressed the key issues of access, safety, and efficiency. The court noted that the agreement included measures to ensure fair competition and included provisions that aligned with public policy objectives, such as environmental protection and safety standards. The court concluded that the agreement was in the public interest and met the necessary legislative criteria. Consequently, the court approved the DTM WA Fremantle Fuel Transport Agreement 2024, paving the way for its implementation.

The final orders of the court included the approval of the agreement, subject to certain conditions designed to ensure ongoing compliance with safety and public interest standards. The court also mandated that the parties submit regular reports on the implementation and impact of the agreement, ensuring that any issues could be promptly addressed. This decision provided clarity and certainty for all parties involved, facilitating the efficient transport of fuel in the Fremantle area.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established