K&S Freighters Pty Ltd t/a K&S Freighters

[2024] FWCA 3496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

K&S Freighters Pty Ltd t/a K&S Freighters

(AG2024/3332)

CHEMTRANS BRISBANE DRIVERS ENTERPRISE AGREEMENT 2024

Road transport industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 4 OCTOBER 2024

Application for approval of the Chemtrans Brisbane Drivers Enterprise Agreement 2024

An application has been made for the approval of an enterprise agreement known as the Chemtrans Brisbane Drivers Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by K&S Freighters Pty Ltd t/a K&S Freighters (Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) given to employees at the commencement of negotiations referred to a proposed agreement called the ‘Chemtrans Brisbane Drivers Enterprise Agreement 2023.’ The Agreement has the same title save for the year reference in the title which is 2024. The notification time for the proposed agreement was 18 August 2023. The discrepancy can be explained by the time it took to finalise the negotiations. I am satisfied that the error is a minor technical error within the meaning of s.188(5) of the Act and that employees were not likely to have been disadvantaged by the error. I therefore propose to disregard the error.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. The bargaining representatives have indicated their acceptance of the undertakings provided. 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.

Having regard to the material filed in support of the application, including the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

The Agreement does not contain a consultation term compliant with the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that Clause 3.1 of the Agreement provides that where the Agreement deals with matters contained in the National Employment Standards (NES) and where the corresponding provisions of the NES are more favourable to employees, the NES will prevail. This clause addresses any remaining potential issues relating inconsistency with the NES which have not been dealt with directly by the undertakings provided.

The Transport Workers’ Union of Australia (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.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved K&S Freighters Pty Ltd trading as K&S Freighters and the application for the approval of the Chemtrans Brisbane Drivers Enterprise Agreement 2024. The matter was heard in the Fair Work Commission, where K&S Freighters sought the approval of the agreement, which was negotiated between the company and the drivers' union. The dispute centred around whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009.

The primary legal issue before the court was whether the Chemtrans Brisbane Drivers Enterprise Agreement 2024 met all the requirements for approval under the Fair Work Act. Specifically, the court had to determine if the agreement provided for minimum terms and conditions of employment, as required by the legislation. The court also needed to consider if the agreement had been fairly negotiated and whether it complied with other provisions of the Act, including those relating to employee representation and the avoidance of industrial action.

The Fair Work Commission evaluated the agreement against the statutory criteria. The Commission found that the agreement contained all the minimum terms and conditions mandated by the Fair Work Act. It was satisfied that the agreement had been negotiated in good faith and was fair and reasonable. The Commission determined that the agreement complied with all the relevant provisions of the Act and approved it. The court noted the absence of any objections from other parties and the overall fairness of the agreement, which contributed to its decision.

As a result of the court's decision, the Chemtrans Brisbane Drivers Enterprise Agreement 2024 was approved and is now legally binding between K&S Freighters and the drivers' union. The approval ensures that the agreement provides for the minimum terms and conditions of employment as required by law and facilitates a fair working relationship between the parties.

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