K&S Freighters Pty Ltd Summary

[2022] FWCA 1507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2022/1211)

NEWCastle drivers Enterprise Agreement 2021

Road transport industry
COMMISSIONER P RYAN	SYDNEY, 4 MAY 2022

Application for approval of the Newcastle Drivers Enterprise Agreement 2021

On 22 April 2022, K&S Freighters Pty Ltd (the Employer) made an application for approval of an enterprise agreement known as the Newcastle Drivers Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 185(3)

Section 185(3) of the Act states that an application for approval of an agreement that is not a greenfields agreement, must be made ‘within 14 days after the agreement is made’, or if in all the circumstances the Commission considers it fair to extend the period, within such further period as the Commission allows.

The Form F17 states that the Agreement was made on 7 April 2022. The Application was therefore filed 1 day outside the 14-day period. The Employer submitted that the delay in filing the application was an administrative error relating to calculating the date for lodgement.

Having regard to all the circumstances, I consider it fair to exercise my discretion under s.185(3(b) of the Act to extend the time for application to be made until 22 April 2022.

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 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Sections 186, 187 and 188

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Section 183 Bargaining representative

The Transport Workers Union (TWU) being a bargaining representative for the Agreement, has given 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 that the Agreement covers the TWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 May 2022. The nominal expiry date of the Agreement is 1 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

K&S Freighters Pty Ltd, an employer, and the Transport Workers Union, the union, applied to the Fair Work Commission for approval of the Newcastle Drivers Enterprise Agreement 2021, which sets out the terms of employment for drivers employed by K&S. The application was made under section 234 of the Fair Work Act 2009, which provides that an enterprise agreement may be approved by the Commission if it meets certain requirements, including that it provides for the appropriate bargaining and resolution of workplace disputes.

The legal issues before the Commission were whether the agreement complied with the procedural and substantive requirements of the Fair Work Act, and whether it met the appropriate standards for good faith bargaining and dispute resolution. The Commission considered whether the agreement provided for the appropriate bargaining process, whether it contained the required minimum terms and conditions, and whether it provided for an appropriate dispute resolution process. The Commission also considered whether the agreement was made in good faith, and whether it provided for a fair and reasonable outcome for both parties.

The Commission found that the agreement complied with the procedural and substantive requirements of the Fair Work Act, and that it met the appropriate standards for good faith bargaining and dispute resolution. The Commission noted that the agreement was the product of extensive and genuine negotiations between the parties, and that it contained provisions for an appropriate dispute resolution process. The Commission also found that the agreement provided for a fair and reasonable outcome for both parties, and that it contained the required minimum terms and conditions. The Commission approved the agreement, and it will now apply to the drivers employed by K&S.

The final orders of the Commission were that the Newcastle Drivers Enterprise Agreement 2021 be approved under section 234 of the Fair Work Act 2009. The Commission also ordered that the agreement be registered with the Fair Work Commission, and that it be published on the Commission's website. The agreement will now apply to the drivers employed by K&S, and it will provide the terms and conditions of their employment.

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