K&S Freighters Pty Ltd
[2025] FWCA 1630
•15 MAY 2025
| [2025] FWCA 1630 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
K&S Freighters Pty Ltd
(AG2025/1312)
PORT KEMBLA WORKSHOP EMPLOYEES AGREEMENT 2024
| Road transport industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 15 MAY 2025 |
Application for approval of the Port Kembla Workshop Employees Agreement 2024
Introduction
K&S Freighters Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Port Kembla Workshop Employees Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Manufacturing and Associated Industries and Occupations Award 2020 (Award).
National Employment Standards (NES) issues
Annual leave
Clause 16(a) of the Agreement provides that employees are entitled to 20 days of annual leave per year, inconsistent with s.87 of the Act which specifies annual leave in weeks.
Carer’s leave
Clauses 16(b) and 16(c) the Agreement provide that employees are entitled to take carer’s leave where required to provide care and support to a member of the employee’s immediate family who requires care, support if they are sick, or have an unexpected emergency. This may be inconsistent with s.97 and s.103 of the Act, which provide that employees are entitled to take paid/unpaid carers leave when a member of their immediate family or household requires care or support due to an illness, injury or unexpected emergency.
Compassionate leave
Clause 16(d) of the Agreement provides that employees are entitled to take compassionate leave ‘when an immediate family member contracts or develops a personal injury or illness that poses a serious threat to their life or dies’. This may be inconsistent with s. 104 of the Act, which provides that employees are entitled to take compassionate leave when a member or their immediate family or household contracts a personal illness or injury that poses a serious threat to their life or dies. Additionally, clause 16(d) of the Agreement is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:
Clause 13 of the Agreement refers to trainees, however, rates of pay have not been provided.
Clause 5 of the Agreement provides that ‘the Manufacturing and Associated Industries and Occupations Award 2020 (‘the award’) shall also apply, except as varied by this agreement. Where there is any inconsistency between the terms of the award and this agreement, the terms of the agreement shall take precedence.’ It is unclear if the Award was intended to be incorporated and if the Award entitlements apply where the Agreement is silent.
Clause 8(a) of the Agreement provides that the span of ordinary hours will be between 4:30am to 6:30pm. The Award provides for a span of hours from 6:00am to 6:00pm, which may be moved up to one hour forward or one hour back by agreement as per clause 17.2(d). The Agreement therefore contains a 14-hour span as compared to a 12-hour span under the Award. This presents a concern for first and second year apprentices under 21, where they would otherwise be entitled to overtime rates under the Award sooner. I note that clause 12.15 of the Award provides that no apprentice under 18 years old will be required to work overtime. Therefore, where apprentices under the Agreement regularly work within hours that constitute overtime under the Award, they may not be better off overall. The Employer submitted that working hours for apprentices is from 7.00am to 3.30pm. An apprentice may occasionally work a half day on a Saturday and on such an occasion is paid overtime for the time worked.
Clause 8 of the Agreement provides that afternoon shift finishes after 6.30pm and is afforded a 15% shift allowance, and that night shift commences from 4.30pm and finishes before 6:00am with a 30% shift allowance. Clause 33.2(b) of the Award provides that afternoon shift means any shift finishing after 6:00pm and at or before midnight and night shift means any shift finishing after midnight and at or before 8am. If employees frequently work in a pattern where they finish afternoon shifts at 6:00pm or finish night shifts after 6:00am and before 8:00am and are therefore not entitled to the shift penalties, this may be a BOOT concern for first and second year apprentices under 21. I note that clause 12.15 of the Award provides that no apprentice under 18 years old will be required to work shiftwork. Therefore, where apprentices under the Agreement regularly work within hours that constitute shiftwork under the Award, they may not be better off overall. The Employer submitted that employees including apprentices do not perform any shift work.
Clause 10(d) of the Agreement provides that public holiday work will be paid a penalty of 200%, inconsistent with clause 32.7 of the Award which provides for a penalty of 250% and 275% for casuals. Given the nature of casual employment, it is possible that they may be engaged on public holidays in isolation. Although it was unclear if the Employer would engage casuals this way, where casuals receive a lesser public holiday penalty, they may not be better off overall. The Employer submitted that it does not employ casual employees at the Port Kembla Workshop.
Clause 10(b) of the Agreement provides that overtime worked in excess of rostered hours Saturday is paid at time and a half. This appears to be inconsistent with clause 32.5 of the Award which provides for Saturday overtime to be paid at 150% for the first 3 hours and 200% thereafter. Therefore, rates may not be high enough to compensate employees who regularly work overtime on Saturdays with reduced penalties.
Clause 10(d) of the Agreement provides that an employee recalled to work overtime after leaving his/her employer's business premises shall be paid for a minimum of 4 hours. This is more restrictive than the Award which provides for the following minimum engagement entitlements:
a.Clause 32.5 Saturday work – A minimum payment of 4 hours, except where the overtime is continuous with overtime commenced on the previous day.
b.Clause 32.6 Sunday work and Clause 32.7 Public holiday work – A minimum payment of 3 hours.
The Agreement appears to be silent on the entitlement to penalty rates where an employee is required to work through their meal break. Under clause 18.5 of the Award, employees are entitled to 150% for time worked during an employee’s meal break on Monday to Friday or 200% on a Saturday or Sunday. Employees working shiftwork are entitled to their usual shift penalty in addition to the rates contained at clause 18.5 of the Award. Rates of pay may not be high enough under the Agreement to compensate employees engaged as an apprentice under 21 years old in the first year of their apprenticeship, who work through their meal break.
Section 190 Undertakings
The Employer provided written submissions and undertakings to address the above NES BOOT issues. 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. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, and after considering the submissions made by the Employer, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The Australian Workers’ Union (AWU) 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 AWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 May 2025. The nominal expiry date of the Agreement is 1 December 2028.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE529029 PR787360>
0
0
0