K&S Freighters Pty Ltd

[2024] FWCA 1288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2024/972)

K&S FREIGHTERS WA TRANSPORT WORKERS’ ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 10 APRIL 2024

Application for approval of the K&S Freighters WA Transport Workers’ Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the K&S Freighters WA Transport Workers’ Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by K&S Freighters Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 28 August 2023 and the Agreement was made on 21 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Transport Workers' Union of Australia (the TWU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
The Transport Workers' Union of Australia (the TWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, K&S Freighters Pty Ltd applied for the approval of a proposed enterprise agreement, the K&S Freighters WA Transport Workers’ Enterprise Agreement 2023. The application was brought by the company seeking the Fair Work Commission's endorsement of the proposed agreement to be made binding on its employees. The dispute arose from the negotiation process and the content of the proposed agreement, which was intended to regulate the terms and conditions of employment for transport workers in Western Australia.

The court was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly whether it was a "better off overall test" agreement. This involved assessing whether the agreement provided employees with no less pay and no worse conditions than those they would have received under applicable awards or agreements. The court also needed to consider whether the agreement complied with the procedural requirements for enterprise agreements and whether it adhered to the principles of good faith bargaining and procedural fairness.

The Federal Court found that the proposed agreement satisfied the "better off overall test" and complied with the statutory requirements of the Fair Work Act. The court concluded that the agreement provided employees with at least the same pay and conditions they would have received under the applicable awards or agreements. Additionally, the court confirmed that the negotiation process was conducted in good faith and in accordance with procedural fairness. As a result, the court approved the proposed K&S Freighters WA Transport Workers’ Enterprise Agreement 2023. The agreement is now binding on the parties and will govern the terms and conditions of employment for the specified employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established