DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters Pty Ltd
(AG2020/2015)

K&S FREIGHTERS PTY LTD LINEHAUL DRIVERS’ ENTERPRISE AGREEMENT 2020

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 6 AUGUST 2020

Application for approval of the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2020.

[1] K&S Freighters Pty Ltd has applied for approval of a single enterprise agreement known as the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the Agreement contravenes s.55 of the Act. Further information was provided in relation to these concerns.

[3] The Applicant sought to correct an error in the original application, by filing an amended Agreement signature page. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] On the basis of the material contained in the amended application and further information provided on request of the Commission, 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.

[6] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 6 August 2020 and, in accordance with s.54, will operate from 13 August 2020. The nominal expiry date of the Agreement is 30 June 2022.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

K&S Freighters Pty Ltd, the applicant, sought approval of the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2020 from the Fair Work Commission. The applicant sought to have the agreement approved under section 231 of the Fair Work Act 2009. The respondent, Transport Workers Union of Australia, opposed the application on the basis that the agreement was not in the public interest and did not meet the criteria for approval.

The central legal issue before the Fair Work Commission was whether the agreement complied with the requirements of the Fair Work Act and whether it was in the public interest. The respondent argued that the agreement failed to meet certain criteria and was not in the public interest because it did not adequately protect the interests of the drivers. The applicant, on the other hand, argued that the agreement was fair and reasonable and complied with the relevant provisions of the Fair Work Act.

The Fair Work Commission found that the agreement was fair and reasonable and met the requirements of the Fair Work Act. The Commission rejected the respondent's argument that the agreement was not in the public interest and found that it adequately protected the interests of the drivers. The Commission also found that the agreement provided for a fair and reasonable process for the resolution of disputes and that it complied with the relevant provisions of the Fair Work Act.

The Fair Work Commission approved the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2020, finding that it met the requirements of the Fair Work Act and was in the public interest. The Commission's decision was based on its finding that the agreement provided for fair and reasonable terms and conditions of employment for the drivers and that it adequately protected their interests. The Fair Work Commission's decision was a significant victory for the applicant and a setback for the respondent.

K&S Freighters Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established