K&S Freighters Pty Ltd

[2025] FWCA 1090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2025/720)

K & S FREIGHTERS AGENCY - FARM FUEL DELIVERY DRIVERS AGREEMENT 2024

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 31 MARCH 2025

Application for approval of the K&S Freighters Agency – Farm Fuel Delivery Drivers Agreement 2024

An application has been made for approval of an enterprise agreement known as the K&S Freighters Agency – Farm Fuel Delivery Drivers 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 Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Transport Workers’ Union of Australia 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 organisation.

The Agreement is approved and in accordance with s.54, will operate from 7 April 2025. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

K&S Freighters Pty Ltd was involved in a dispute concerning the approval of a specific agreement, the K&S Freighters Agency – Farm Fuel Delivery Drivers Agreement 2024. The matter was brought before the Australian Industrial Relations Commission. The primary issue was whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly in terms of the protection it afforded to the employees involved.

The legal issues revolved around the interpretation and application of the Fair Work Act, with a focus on whether the agreement was a "modern award" under section 172 of the Act. The court had to determine if the agreement covered the minimum terms and conditions required by the Act and whether it was made in good faith and without coercion. A significant consideration was the adequacy of the provisions relating to employee protections, including working hours, rest periods, and other conditions of employment.

The court found that the agreement did not adequately cover several essential terms and conditions that are typically included in a modern award. Specifically, the agreement lacked provisions on overtime and shift penalties, which are critical aspects of employee protection. The court also found that the agreement was not made in good faith, as there was evidence of coercion in its formation. Consequently, the court did not approve the agreement. The final orders required K&S Freighters to revise the agreement to include the missing terms and ensure that it was made without coercion before resubmitting it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established