K&S Freighters Pty Ltd

[2025] FWCA 1843

[2025] FWCA 1843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2025/1451)

K&S ENERGY WA DRIVERS AGREEMENT 2024

Road transport industry
COMMISSIONER LIM	PERTH, 10 JUNE 2025

Application for approval of the K&S Energy WA Drivers Agreement 2024.

1. K&S Freighters Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the K&S Energy WA Drivers Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. 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.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 15.4(a) requires employees to notify their supervisor as soon as possible when taking personal/carer’s leave. It states that it is expected that employees will contact their supervisor at least 1 hour prior to their scheduled starting time. This appears to be inconsistent with s 107(2) of the Act which states notice must be given to the employer as soon as practicable, which may be a time after the leave has started.

(b)Clause 20.4 provides that the company and employees may agree to substitute another day for any public holiday prescribed in the NES. For this purpose, the consent of most affected employees will constitute agreement. This appears to be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.

(c)Clause 32.7 states that if an employee fails to give the required notice when terminating their employment, the employer may withhold from any monies due to the employee on termination under this Agreement or the NES, an amount not exceeding the amount the employee would have been paid under this Agreement in respect of the period of notice required by this clause less any period of notice actually given by the employee. The effect of this is that this clause appears to permit the employer to deduct employee’s entitlements under the NES, such as notice of termination, accrued but unused annual leave or long service leave on termination. This raises the issue that this provision may be inconsistent with Chapter 2, Part 2.2, Division 2 of the Act.

1. However, I am satisfied that under clause 6.2 of the Agreement, and the undertaking provided by the Applicant, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Transport Workers' Union of Australia (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 10 June 2025 and, in accordance with s 54, will operate from 17 June 2025. The nominal expiry date of the Agreement is 31 October 2026.

COMMISSIONER

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Annexure A