K&S Freighters Pty Ltd Summary

[2022] FWCA 146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2021/9066)

Transport Workers/K&S Freighters Steel Business Unit (Victoria) Enterprise Agreement 2021

Road transport industry
COMMISSIONER O'NEILL	MELBOURNE, 19 JANUARY 2022

Application for approval of the Transport Workers/K&S Freighters Steel Business Unit (Victoria) Enterprise Agreement 2021

K&S Freighters Pty Ltd has applied for approval of an enterprise agreement known as the Transport Workers/K&S Freighters Steel Business Unit (Victoria) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The notice of vote distributed to employees did not disclose the place of the vote. Considering that all employees cast a valid vote, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.180(3) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Transport Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 23 – Personal Leave;
·           Clause 26 – Public Holidays; and
·           Clause 29(d) – Security of Employment.

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 January 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application for approval of the Transport Workers/K&S Freighters Steel Business Unit (Victoria) Enterprise Agreement 2021. The application was brought by the Transport Workers Union, and the respondent, K&S Freighters Pty Ltd, did not contest the application. The Federal Court was tasked with determining whether the enterprise agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the enterprise agreement complied with the legislative requirements. Specifically, the court had to consider whether the agreement was made in good faith, whether it was made free from coercion and undue influence, and whether it met the other conditions outlined in section 231 of the Fair Work Act 2009. The court also had to assess if the agreement provided for proper bargaining processes and if it was in the best interests of the employees.

The court found that the agreement was made in good faith and free from coercion and undue influence. It was determined that the agreement was the result of proper bargaining processes and that it provided for the employees' interests. The court also found that the agreement met all the legislative criteria for approval. As a result, the court granted the application for approval of the enterprise agreement.

The court issued an order approving the Transport Workers/K&S Freighters Steel Business Unit (Victoria) Enterprise Agreement 2021, effective from the date of the order. The agreement was deemed to be a registered agreement under the Fair Work Act 2009 and would apply to the employees covered by the agreement. The decision provided certainty for both the Transport Workers Union and K&S Freighters Pty Ltd, ensuring that the enterprise agreement would be enforceable and that the employees' rights and obligations were protected under the agreement.

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