K&S Freighters T/A K&S Freighters

[2022] FWCA 4441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters T/A K&S Freighters

(AG2022/4949)

K&S Freighters Transport Workers Employees, Northern Territory General Transport Agreement, 2022

Road transport industry
COMMISSIONER HUNT	BRISBANE, 15 DECEMBER 2022

Application for approval of the K&S Freighters Transport Workers Employees, Northern Territory General Transport Agreement, 2022

K&S Freighters T/A K&S Freighters (the Employer) has applied for approval of an enterprise agreement known as the K&S Freighters Transport Workers Employees, Northern Territory General Transport Agreement, 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Transport Workers’ Union of Australia SA/NT Branch (the TWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

The Commission further raised concerns in respect to the voting notification. The employees were initially informed on 3 November 2022 of the vote to take place between 14 – 18 November 2022. The notification to employees did not advise how the vote was to occur.

On 7 November 2022, the Employer informed the employees the vote will be held by confidential ballot; the ballot will be located in the Operations office; and ballot papers will be issued to employees individually prior to voting.
It is evident that the method and place of vote was not notified to employees until 7 November 2022. Employees were provided with an access period of only six days, not seven days as required by the Act.

The Employer declared that on account of the ballot box being in a central branch and centralised office, the employees to be covered by the Agreement would have had access to and the opportunity to vote. I note that 15 out of 19 employees took the opportunity to vote during the five day voting period.

In the circumstances, and having regard for the large voter participation, I exercise my discretion under s.188(2) of the Act finding that the Agreement would have been genuinely agreed to but for minor procedural or technical errors made in relation to the requirements of s.188(1)(a), and the employees covered by the Agreement were not likely to have been disadvantaged by this error.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, and my decision at [8] above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the Employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The TWU being a bargaining representative for the Agreement has given 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 that the Agreement covers the TWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2022. The nominal expiry date of the Agreement is 1 September 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

The matter before the court involved K&S Freighters, who sought approval for the Transport Workers (Employees) Northern Territory General Transport Agreement, 2022. This agreement, which pertains to the terms and conditions of employment for transport workers in the Northern Territory, was proposed to be adopted as a greenfields agreement under the Fair Work Act 2009. The application was brought before the Fair Work Commission, which has jurisdiction over such matters.

The central legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval as a greenfields agreement. This involved assessing whether the agreement provided for minimum terms of employment that were no less favourable than the relevant modern award, and whether the agreement was supported by a majority of the employees it covered. Furthermore, the Commission needed to determine if the agreement was in the interests of the employees and the employers involved.

In its reasoning, the Commission examined the proposed agreement's provisions against the criteria set out in the Fair Work Act. It found that the agreement provided for terms and conditions that were at least as favourable as those stipulated in the relevant modern award. The Commission also noted that the agreement had the support of the requisite majority of employees. Additionally, the Commission concluded that the agreement was in the interests of both the employees and the employers. Consequently, the Commission approved the Transport Workers (Employees) Northern Territory General Transport Agreement, 2022, as a greenfields agreement.

The final orders included the approval of the agreement, which would now serve as the minimum terms of employment for the relevant employees, effective from the date of the Commission's decision. The agreement was to be registered with the Fair Work Commission, and copies were to be provided to the parties involved. The approval was contingent upon compliance with the terms and conditions of the agreement and adherence to the relevant provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established