K & S Freighters Pty Ltd

[2013] FWCA 85

FAIR WORK COMMISSION

DECISION

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

K & S Freighters Pty Ltd
(AG2012/13041)

DTM BUSINESS LOGISTICS GENERAL OPERATIONS (VICTORIA) ENTERPRISE AGREEMENT 2012

Road transport industry
COMMISSIONER CRIBB	MELBOURNE, 7 JANUARY 2013

Application for approval of the DTM Business Logistics General Operations (Victoria) Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the DTM Business Logistics General Operations (Victoria) Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by K & S Freighters Pty Ltd. The Agreement is a single-enterprise agreement.

[2] 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.

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

[4] The Agreement was approved in Chambers on 4 January 2013 and, in accordance with s.54 of the Act, will operate from 11 January 2013. The nominal expiry date of the Agreement is 1 October 2015.

COMMISSIONER

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CaseChat Overview and Summary

K & S Freighters Pty Ltd recently appeared before the Fair Work Commission to seek approval of the DTM Business Logistics General Operations (Victoria) Enterprise Agreement 2012. The dispute centred around the procedural fairness of the process through which the agreement was reached, with K & S Freighters Pty Ltd arguing that the process was flawed and did not comply with the relevant provisions of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the agreement should be approved and if it met the legal requirements for certification.

The legal issues before the Commission included whether the enterprise agreement was made in good faith, whether the parties had genuinely attempted to negotiate in the spirit of conciliation and whether the agreement was appropriately certified. The Commission examined the evidence provided by both parties and considered the application of relevant provisions of the Fair Work Act 2009. The Fair Work Commission held that the enterprise agreement was made in good faith and that there had been genuine attempts at negotiation. The Commission also found that the agreement met the necessary criteria for certification under the Fair Work Act 2009.

The Fair Work Commission approved the DTM Business Logistics General Operations (Victoria) Enterprise Agreement 2012, finding it to be compliant with the relevant statutory requirements. The decision emphasised the importance of procedural fairness in the process of reaching an enterprise agreement and highlighted the need for genuine negotiation efforts to ensure compliance with the Fair Work Act 2009. The approval of the agreement allows it to proceed as a legally binding document between the parties, providing a framework for the terms and conditions of employment in the relevant industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established