K&S Freighters Pty Ltd

[2023] FWCA 2805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2023/2763)

K&S ENERGY (TOWNSVILLE AND CAIRNS) DRIVERS ENTERPRISE AGREEMENT 2023

Road transport industry
COMMISSIONER CRAWFORD	SYDNEY, 1 SEPTEMBER 2023

Application for approval of the K&S Energy (Townsville and Cairns) Drivers Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as K&S Energy (Townsville and Cairns) Drivers 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.

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

Noting clause 6.2 of the Agreement, 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 from seven days after approval in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 March 2026.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of K&S Freighters Pty Ltd, the Fair Work Commission was presented with an application for the approval of a new enterprise agreement between the company and its drivers, specifically the K&S Energy (Townsville and Cairns) Drivers Enterprise Agreement 2023. The applicant, K&S Freighters Pty Ltd, sought to implement this agreement to govern the terms and conditions of employment for its drivers in the specified regions. The application followed a negotiation process where the enterprise agreement was reached by the parties, and it aimed to provide a comprehensive framework addressing wages, working conditions, and other employment-related matters.

The primary legal issues before the Commission involved determining whether the agreement complied with the statutory requirements set out in the Fair Work Act 2009. This included ensuring the agreement met the 'better off overall test', which requires that employees be no worse off financially and, in some cases, better off overall. The Commission had to assess if the agreement provided fair and reasonable terms for the drivers, taking into account the principles of enterprise bargaining and the protections afforded to employees under the Act.

After a thorough examination of the submitted agreement, the Fair Work Commission concluded that the K&S Energy (Townsville and Cairns) Drivers Enterprise Agreement 2023 was in compliance with the statutory requirements. The agreement was found to provide fair and reasonable terms for the drivers, meeting the 'better off overall test'. The Commission noted that the agreement had been negotiated in good faith and reflected a balance between the interests of the company and the drivers. Consequently, the Commission approved the enterprise agreement, paving the way for its implementation.

The final orders of the Commission were that the K&S Energy (Townsville and Cairns) Drivers Enterprise Agreement 2023 be approved and registered under the Fair Work Act 2009. The agreement would now serve as the governing document for the employment terms of the drivers in the specified regions, effective from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established