K&S Freighters Pty Ltd

[2024] FWCA 137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2023/4615)

K&S FREIGHTERS MOUNT GAMBIER TRANSPORT WORKERS AGREEMENT 2023

Road transport industry
COMMISSIONER THORNTON	ADELAIDE, 11 JANUARY 2024

Application for approval of the K&S Freighters Mount Gambier Transport Workers Agreement 2023

An application has been made for approval of an enterprise agreement known as the K&S Freighters Mount Gambier Transport Workers 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.

I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met.

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

Noting the undertakings provided, and considering clause 3.1 as the NES precedence clause, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act from 18 January 2024. The nominal expiry date of the Agreement is 18 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

K&S Freighters Pty Ltd has applied for the approval of the K&S Freighters Mount Gambier Transport Workers Agreement 2023. The application was made under section 185 of the Fair Work Act 2009. The agreement in question is a single enterprise agreement that pertains to the road transport industry. The application was heard by Commissioner Thornton of the Fair Work Commission in Adelaide on 11 January 2024.

The legal issues that the court had to decide were whether the application met the requirements of sections 186, 187, 188, and 190 of the Fair Work Act 2009, and whether the written undertakings provided by the applicant would cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement. The court also had to consider whether the National Employment Standards (NES) precedence clause would be effective in ensuring that the more beneficial entitlements of the NES would prevail where there is an inconsistency between the agreement and the NES.

The court found that the application met all the relevant requirements of the Fair Work Act. The written undertakings provided by the applicant were also satisfactory, and the court was satisfied that they would not cause financial detriment to any employee or result in substantial changes to the agreement. The court also found that the NES precedence clause was effective in ensuring that the more beneficial entitlements of the NES would prevail where there is an inconsistency between the agreement and the NES.

The court approved the K&S Freighters Mount Gambier Transport Workers Agreement 2023, and it will operate in accordance with section 54 of the Fair Work Act from 18 January 2024. The nominal expiry date of the agreement is 18 January 2027. The court's decision was based on the evidence and arguments presented by both parties, and the court found that the agreement was fair and reasonable for the employees covered by it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established