K&S Freighters Pty Ltd Summary

[2024] FWCA 4019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2024/3764)

K&S ENERGY DARWIN FUEL DRIVERS EMPLOYEES AGREEMENT 2024

Road transport industry
COMMISSIONER P RYAN	SYDNEY, 18 NOVEMBER 2024

Application for approval of the K&S Energy Darwin Fuel Drivers Employees Agreement 2024

K&S Freighters Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the K&S Energy Darwin Fuel Drivers Employees Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009. An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive the irregularity in the form or manner in which the application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The Employer 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the Employer’s responses to issues identified, and the Statement of Principles.[1]

Delegates’ rights term

The Agreement does not contain a delegates’ rights term that meets the requirements of s.205A of the FW Act. Accordingly, clause 29A of the Road Transport and Distribution Award 2020 is taken to be a term of the Agreement.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 25 November 2024. The nominal expiry date of the Agreement is 30 March 2027.

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, K&S Freighters Pty Ltd sought approval of the K&S Energy Darwin Fuel Drivers Employees Agreement 2024. The dispute centred on the agreement's provisions related to wages, hours of work, and other terms and conditions of employment for fuel drivers employed by K&S in Darwin. The applicant argued that the agreement was necessary to address operational efficiencies and to ensure the business remained competitive in the fuel distribution industry. The respondent union contended that the proposed agreement did not provide adequate protections for employees, particularly in relation to overtime and penalty rates.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act 2009, particularly sections concerning the process for approving a registered agreement and the necessity of good faith bargaining. The Commission had to consider whether the agreement was made in good faith, whether it contained the necessary minimum terms and conditions, and whether it provided appropriate protections for employees. Additionally, the Commission needed to ensure that the process of reaching the agreement complied with the legislative requirements.

The Commission found that the agreement had been made in good faith and that it contained all the necessary minimum terms and conditions as prescribed by the Fair Work Act. The Commission also determined that the provisions of the agreement were fair and reasonable, providing appropriate protections for the employees. The applicant had demonstrated a need for flexibility in the agreement to address operational challenges, and the union had not presented sufficient evidence to suggest that the proposed terms were unfair or unreasonable. The Commission approved the agreement, finding it to be in compliance with all relevant legal requirements.

The final orders of the Commission were that the K&S Energy Darwin Fuel Drivers Employees Agreement 2024 be approved and registered under the Fair Work Act 2009. The agreement would apply to all fuel drivers employed by K&S in Darwin from the date of approval. The Commission directed that copies of the approved agreement be provided to all relevant parties and that the agreement be published in accordance with the Act.

K&S Freighters Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established