DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

K&S Freighters Pty Ltd
(AG2018/4956)

K&S FREIGHTERS AGENCY - FARM FUEL DELIVERY DRIVERS 2018

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 22 FEBRUARY 2019

Application for approval of the K&S Freighters Agency - Farm Fuel Delivery Drivers Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the K&S Freighters Agency - Farm Fuel Delivery Drivers Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by K&S Freighters Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 January 2019.

[3] On 17 January 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 19 February 2019. The undertaking deals with the following topics:

• Clause 4 of the Agreement is replaced in its entirety with:

“The Road Transport and Distribution Award 2010 (the Award) is to be incorporated into the Agreement. The employees are classified as Oil Industry Workers under the Award.”

• Clause 13 redundancy entitlement minima are consistent with the National Employment Standards.

• Clause 8 overtime provisions will apply in accordance with the conditions set out in clause 27 of the Award and the rates detailed in the undertaking.

• Clause 8 overtime and time off in lieu (TOIL) shall be deleted and replaced with:

“Clause 8 Overtime TOIL

(a) Overtime may be “banked” as time off in lieu by agreement between the employee and the employer in accordance with Clause 27.7 of the Award.

(b) The maximum number of banked time in lieu hours will be 160 hours. Hours in excess of 160 will be paid to employees at the relevant penalty rates provided by the Award.”

• For the purpose of clause 5 of the Agreement, employees involved in fuel distribution will be classified as Oil Industry Workers and clause 23 of the Award will apply. Full-time employees will be rostered to work an additional five hours per week (a total of 40 hours per week).

• Clause 6 of the Agreement will be varied as follows:

“The rates of pay contained within this Agreement are inclusive of dangerous goods allowance. All other allowances will be payable in accordance with the Award.”

• Employees will be entitled to the penalty rates provided in clause 28 of the Award.

• Employees will be entitled to overtime provisions in accordance with clause 27 of the Award.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, K&S Freighters Pty Ltd, sought approval of the K&S Freighters Agency – Farm Fuel Delivery Drivers Agreement 2018. The respondent, United Voice, represented the employees who are farm fuel delivery drivers. The dispute centred on the terms and conditions outlined in the proposed agreement, particularly concerning pay rates, penalties, and the classification of the employees. The Commission was tasked with determining whether the agreement was fair and reasonable, and whether it complied with the relevant legislative provisions.

The key legal issues before the Commission were whether the proposed agreement was a "better off overall test" (BOOT) agreement, meaning it offered employees a fair and reasonable package of pay and conditions that was at least as good as their existing conditions or the applicable minimum standards. The Commission also had to consider whether the agreement adequately protected the employees' rights and interests, and whether it complied with the Fair Work Act 2009. The Commission further examined the appropriateness of the proposed penalties for breaches of the agreement.

In its decision, the Commission found that the proposed agreement did not meet the BOOT. The Commission noted that the proposed pay rates were lower than the existing rates for similar work in the industry. The penalties for breaches of the agreement were also considered excessive and disproportionate to the breaches. The Commission held that the agreement failed to provide adequate protection for the employees' rights and interests and did not comply with the Fair Work Act 2009. Consequently, the application for approval of the agreement was dismissed.

The Commission's final order was that the application for approval of the K&S Freighters Agency – Farm Fuel Delivery Drivers Agreement 2018 be dismissed. The Commission directed the parties to negotiate in good faith to reach a fair and reasonable agreement that met the BOOT and complied with the Fair Work Act 2009.

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