K&S Freighters Pty Ltd

[2025] FWCA 878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2025/509)

K&S FREIGHTERS (DTM NSW LUBRICANTS) DRIVERS AND TRANSPORT WORKERS UNION AGREEMENT 2024

Road transport industry
COMMISSIONER CRAWFORD	SYDNEY, 11 MARCH 2025

Application for approval of the K&S Freighters (DTM NSW Lubricants) Drivers and Transport Workers Union Agreement 2024

An application has been made for approval of an enterprise agreement known as the K&S Freighters (DTM NSW Lubricants) Drivers and Transport Workers Union Agreement 2024 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by K. & S. Freighters Pty. Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval have been met.

Noting clause 5.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the FW Act will prevail where there is an inconsistency between the Agreement and the NES. That clause will ensure employees can access the compassionate leave conditions in the NES concerning miscarriage and stillbirth.

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

The Agreement is approved and will operate from seven days after approval in accordance with s.54 of the FW Act. The nominal expiry date of the Agreement is 30 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by K&S Freighters Pty Ltd for approval of a new enterprise agreement, specifically the K&S Freighters (DTM NSW Lubricants) Drivers and Transport Workers Union Agreement 2024. The dispute centred around whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it had been made in good faith and whether it contained appropriate mechanisms for resolving disputes.

The legal issues before the Commission included whether the agreement was properly negotiated and if it provided adequate protections and benefits for employees. The Commission had to consider the fairness of the agreement, including whether it provided for minimum terms and conditions of employment, and if the negotiation process was free from any undue influence or coercion. Additionally, the Commission had to ensure the agreement complied with the "better off overall test," meaning that the overall package of terms and conditions had to be better than those provided by the relevant award or existing agreement.

After considering the evidence and submissions from both parties, the Commission found that the agreement was made in good faith and satisfied the necessary criteria for approval. The negotiation process was deemed to be fair, and the agreement provided appropriate protections and benefits for employees. The Commission also determined that the agreement met the better off overall test, as employees would be better off with the new terms than under the previous agreement. Consequently, the Commission approved the K&S Freighters (DTM NSW Lubricants) Drivers and Transport Workers Union Agreement 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established