K&S Freighters Pty Ltd

[2018] FWC 4635

[2018] FWC 4635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

K&S Freighters Pty Ltd
(AG2018/167)

COMMISSIONER CAMBRIDGE SYDNEY, 8 AUGUST 2018

Application for approval of the Bulktrans - Southern Bulk Haulage (SBH) Drivers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement which has been variously referred to as either; Bulktrans – Southern Bulk Haulage (SBH) Drivers Enterprise Agreement 2018; or Bulktrans – Southern Bulk Haulage (SBH) Drivers Workers’ Enterprise Agreement 2018-2019; or Bulktrans – Southern Bulk Haulage (SBH) Drivers Enterprise Agreement 2017; (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by K&S Freighters Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 22 January 2018. On 17 May 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of Kaye Evans made on behalf of the Employer and dated 22 January 2018 (the Declaration). The Declaration stated that the Agreement was made on 17 December 2017. Therefore the application was not made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 19 June 2018, at which time Ms K Evans appeared for the Employer and Ms L De Plater and Mr B Gibson appeared for the Transport Workers’ Union of Australia (TWU). During the proceedings held on 19 June, the Commission identified various issues relating to the contents of the Declaration, and also certain terms contained in the Agreement.

[4] At the conclusion of the Hearing the Employer was invited to consider the concerns raised by the Commission and to respond in writing. The Commission has received correspondence dated 5 July 2018, from the Employer, which included further material in support of the application, including what was referred to as an amended F17 declaration (the further Declaration), and Draft Undertakings proposed to the Commission pursuant to s. 190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the further material in support of the application, and the Draft Undertakings.

[6] The Commission has carefully considered the further material provided in support of the application. Certain aspects of the concerns raised by the Commission in the Hearing held on 19 June have been potentially addressed by the further Declaration, and by some of the Draft Undertakings.

[7] However, other concerns have not been satisfactorily addressed by either the further Declaration or the Draft Undertakings. These unresolved concerns include what was identified by the Commission as the very “unfortunate imprecision with a lot of the documentation.” 1 The enduring nature of the concerns is exampled by the inclusion of the following text in that part of the Draft Undertakings proposed to amend clause 11 of the Agreement, wherein it is stated; “( this clause is confusing and I can’t reference to the old EA – can we discuss)”.

[8] The Commission has given consideration to providing the applicant with further Hearing and other opportunity as a means to further attempt to redress the various on-going concerns. However, upon reflection, the proposed undertakings or any subsequently developed permutation of these or other undertakings which could, on any objective contemplation, provide rectification of the concerns that have been identified, would result in substantial changes to the Agreement.

[9] Consequently, any objectively determined prognosis for the application would create a circumstance that offended subsection 190 (3) (b) of the Act. In such circumstances, and in the interests of efficiency and avoidance of additional costs to the applicant, as the application is not capable of satisfying the relevant requirements of ss. 186, 187, 190 and 193 of the Act, the application must be dismissed.

COMMISSIONER

Appearances:

Ms K Evans appeared for the employer.

Ms L De Plater with Mr B Gibson appeared for the Transport Workers’ Union of Australia.

Hearing details:

2018.

Sydney:

June, 19.

Printed by authority of the Commonwealth Government Printer

<PR609759>

 1   Transcript @ PN11.