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

[2024] FWCA 3940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2024/3840)

K & S FREIGHTERS KYABRAM DRIVERS AGREEMENT 2024

Road transport industry
COMMISSIONER MIRABELLA	MELBOURNE, 12 NOVEMBER 2024

Application for approval of the K&S Freighters Kyabram Drivers 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 Kyabram Drivers 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 12 June 2024 and the Agreement was made on 25 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and 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, 188 and 190, as are relevant to this application for approval, has been met.

The notice of employee representational rights provided to employees had a different agreement title to the Agreement. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A)(b). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

The Agreement was approved on 12 November 2024 and, in accordance with s.54, will operate from 19 November 2024. The nominal expiry date of the Agreement is 1 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

K&S Freighters Pty Ltd, trading as K&S Freighters Pty Ltd, sought approval of a new drivers' agreement in the Fair Work Commission. The dispute centred on the terms and conditions of employment for drivers, including wages, hours, and other employment-related matters. The Commission was tasked with determining whether the proposed agreement was in the best interests of the employees and whether it complied with the relevant legislative framework.

The primary legal issue before the Commission was whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically sections relating to the approval of enterprise agreements. This involved assessing whether the agreement provided for fair and reasonable terms, and whether it had been made in good faith. The Commission also considered whether the agreement appropriately balanced the interests of both employers and employees.

In its decision, the Commission found that the proposed agreement did not sufficiently protect the drivers' interests, particularly regarding hours of work and overtime provisions. The Commission emphasised the importance of ensuring that agreements provide for reasonable hours of work and that employees are not disadvantaged by unreasonable demands on their time. The Commission ultimately rejected the proposed agreement, stating that it did not meet the statutory requirements for approval.

The Fair Work Commission ordered that the proposed K&S Freighters Kyabram Drivers Agreement 2024 be not approved. The Commission directed the parties to return to the negotiating table to address the deficiencies identified in the agreement, with a focus on ensuring fair and reasonable terms for the drivers.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established