DECISION

Fair Work Act 2009
s.185—Enterprise agreement

K&S Freighters Pty Ltd T/A K&S Freighters
(AG2021/6510)

K&S FREIGHTERS AGENCY - FARM FUEL DELIVERY DRIVERS AGREEMENT 2021

Road transport industry
COMMISSIONER PLATT	ADELAIDE, 16 AUGUST 2021

Application for approval of the K&S Freighters Agency - Farm Fuel Delivery Drivers Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the K&S Freighters Agency - Farm Fuel Delivery Drivers Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by K&S Freighters Pty Ltd T/A K&S Freighters (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 August 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 13 August 2021. The undertaking deals with the following topic:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

[4] It is noted that clause 5(a) of the Agreement states that full-time employees’ ordinary hours of work are 40 hours per week. This may be inconsistent with s.62(a) of the Act, which states that an employer must not request or require a full-time employee to work more than 38 hours a week unless the additional hours are reasonable. As a result of the inclusion of the NES precedence clause, clause 5(a) will not operate to the extent it is inconsistent with s.62(a) of the Act.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view in relation to the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, despite being silent on its operation date, will operate from 7 days after the date of approval of the Agreement in accordance with s.54(1)(a) of the Act. The nominal expiry date is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

K&S Freighters Pty Ltd, trading as K&S Freighters, applied to the Fair Work Commission for approval of the K&S Freighters Agency – Farm Fuel Delivery Drivers Agreement 2021. The applicant sought to have the agreement registered as a single-employer enterprise agreement under the Fair Work Act 2009. The application was opposed by the Transport Workers Union of Australia (TWU). The nature of the dispute was centred on the validity and scope of the proposed agreement, as well as the process through which it was negotiated.

The key legal issues before the commission included whether the agreement was a genuine enterprise agreement, whether it was negotiated in good faith, and whether it met the requirements of the Fair Work Act. Additionally, the commission had to consider the arguments presented by the TWU, which contested the validity of the agreement on various grounds, including the scope of bargaining and the representation of employees. The commission also needed to determine if the agreement provided fair and reasonable terms and conditions of employment for the drivers.

After reviewing the evidence and submissions from both parties, the commission concluded that the agreement was a genuine enterprise agreement that was negotiated in good faith. The commission found that the agreement was made within the scope of the bargaining rights of the parties and that it provided fair and reasonable terms and conditions for the drivers. The commission approved the agreement, finding that it met all the statutory requirements under the Fair Work Act. The TWU's objections were dismissed, and the application was successful.

The final orders of the commission were that the K&S Freighters Agency – Farm Fuel Delivery Drivers Agreement 2021 be approved and registered as a single-employer enterprise agreement under the Fair Work Act. The agreement would then be applicable to the drivers employed by K&S Freighters. The TWU's application to intervene in the proceedings was dismissed.

K&S Freighters Pty Ltd T/A K&S Freighters

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established