K&S Freighters Pty Ltd

[2023] FWCA 487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2023/170)

K&S Energy Mackay Drivers Agreement 2023

Road transport industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 16 FEBRUARY 2023

Application for approval of the K&S Energy Mackay Drivers Agreement 2023

K&S Freighters Pty Ltd has made an application for approval of an enterprise agreement known as the K&S Energy Mackay Drivers Agreement 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

The application was not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Agreement was approved on 16 February 2023 and, in accordance with s 54, it will operate from 23 February 2023. The nominal expiry date is 31 December 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by K&S Freighters Pty Ltd for approval of the K&S Energy Mackay Drivers Agreement 2023. The application was brought under the Fair Work Act 2009, seeking to have the agreement recognised as a registered agreement, thereby avoiding the need for individual employees to enter into separate employment contracts. The agreement proposed terms and conditions of employment for drivers employed by the company, including matters such as pay rates, hours of work, and leave entitlements.

The legal issues before the Commission centred on whether the agreement met the requirements for registration under the Fair Work Act. Specifically, the Commission needed to determine if the agreement was made in good faith and covered a class of employees, and if the process leading to the agreement's formation was fair and appropriate. The Commission also had to consider whether the proposed terms and conditions were fair and reasonable and complied with the national minimum standards for employment.

In delivering its decision, the Commission found that the application for approval of the K&S Energy Mackay Drivers Agreement 2023 met the legislative requirements for registration. The Commission was satisfied that the agreement was made in good faith, covered a class of employees, and was the product of a fair and appropriate process. The terms and conditions of employment proposed in the agreement were deemed to be fair and reasonable, and they complied with the national minimum standards. Accordingly, the Commission approved the agreement as a registered agreement, which will now apply to the relevant employees without the need for individual contracts.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established