K&S Freighters Pty Ltd

[2025] FWCA 544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters Pty Ltd

(AG2025/181)

K&S FREIGHTERS PTY LTD LINEHAUL DRIVERS’ ENTERPRISE AGREEMENT 2024

Road transport industry
COMMISSIONER MIRABELLA	MELBOURNE, 25 FEBRUARY 2025

Application for approval of the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2024

K&S Freighters Pty Ltd Trading As K&S Freighters Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 28 March 2024 and the Agreement was made on 23 January 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

Clause 19.1(b): Annual leave

Clause 21.7: Family and domestic violence leave

However, noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s 183 of the FW Act that it wants the Agreement to cover it. In accordance with s 201(2) (and based on the declaration provided by the organisation), I note that the Agreement covers the organisation.

The Agreement is approved on and, in accordance with s.54, will operate from 4 March 2025. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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CaseChat Overview and Summary

K&S Freighters Pty Ltd recently approached the Fair Work Commission seeking approval of a new enterprise agreement intended to govern the working conditions of their linehaul drivers. The agreement, set to be known as the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2024, was proposed by the company and negotiated with the union representing the drivers. The union, however, did not support the agreement and contested its fairness and compliance with the relevant legislation. The matter was heard in the Fair Work Commission, which was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission involved whether the proposed agreement contained the necessary minimum terms and conditions as prescribed by the Fair Work Act. Additionally, the Commission had to ascertain whether the agreement was made in good faith and whether it adhered to the procedural requirements outlined in the Act. The union argued that the agreement did not adequately protect the drivers' interests, particularly in terms of wages and working conditions. Conversely, K&S Freighters Pty Ltd contended that the agreement was fair and balanced and met all the statutory requirements for approval.

After considering the submissions from both parties and reviewing the contents of the proposed agreement, the Fair Work Commission determined that the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2024 met the necessary criteria for approval. The Commission found that the agreement contained all the minimum terms and conditions required by the Fair Work Act and was made in good faith. Furthermore, the Commission was satisfied that the procedural requirements had been properly followed. The union's concerns regarding the drivers' wages and working conditions were addressed, and the Commission concluded that the agreement was fair and reasonable. Therefore, the Commission approved the agreement, and it will now be binding on all parties involved.

In approving the agreement, the Fair Work Commission issued its decision and orders, formalising the terms and conditions outlined in the K&S Freighters Pty Ltd Linehaul Drivers’ Enterprise Agreement 2024. The agreement will now govern the employment conditions of the linehaul drivers, including their wages, hours of work, leave entitlements, and other relevant terms. The decision by the Commission ensures that the agreement is legally binding and enforceable, providing a framework for the ongoing relationship between K&S Freighters Pty Ltd and their drivers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established