K&S Freighters T/A K&S Freighters

[2022] FWCA 3721

[2022] FWCA 3721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters T/A K&S Freighters

(AG2022/4242)

K&S Freighters (DTM NSW Lubricants) Drivers Agreement 2022

Road transport industry
COMMISSIONER YILMAZ	MELBOURNE, 25 OCTOBER 2022

Application for approval of the K&S Freighters (DTM NSW Lubricants) Drivers Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the K&S Freighters (DTM NSW Lubricants) Drivers Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by K&S Freighters T/A K&S Freighters. The Agreement is a single enterprise agreement.

1. The Form F17 and supporting documentation filed by the Applicant indicate that employees were given 6 clear days’ notice of the time, place, and method of the vote in contravention of s.180(2) of the Act. The Applicant submits that this occurred in circumstances in which the vote had initially been scheduled for 22 September 2022 with 7 clear days’ notice given, which was later declared a public holiday. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Transport Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and in accordance with s.54, will operate from 1 November 2022. The nominal expiry date of the Agreement is 30 August 2024.

COMMISSIONER

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