K&S Freighters Pty Ltd

[2025] FWCA 1532

[2025] FWCA 1532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

K&S Freighters Pty Ltd

(AG2025/953)

K&S ENERGY SOUTH AUSTRALIAN TANKERS AGREEMENT 2024

Road transport industry
COMMISSIONER THORNTON	ADELAIDE, 7 MAY 2025

Application for approval of the K&S Energy South Australian Tankers Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the K&S Energy South Australian Tankers Agreement 2024 (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 Applicant). The Agreement is a single enterprise agreement.

1. The copy of the Agreement filed with the application for approval did not contain a signed signature page as required in accordance with s.185 of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (the Regulations). An amended signature page was later filed that met the requirements of the Act and Regulations. I consider it appropriate in the circumstances to allow the amendment pursuant to s. 586(a) of the Act.

1. I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. 

1. The Applicant has provided written undertakings. 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. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. Pursuant to sections 193A(6) and (6A) of the Act, I have had regard to the submissions of the Employer that patterns of work which may cause employees to be better off under the Award are not reasonably foreseeable. The Employer has represented that drivers receive a higher rate of pay than the Award when undertaking long distance driving approximately 30 per cent of their work time. I accept the submissions of the Employer. For completeness, I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.

1. The Transport Workers’ Union (TWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the TWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act from 14 May 2025. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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Annexure A