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

[2022] FWCA 2983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters T/A K&S Freighters

(AG2022/3318)

Chemtrans Victoria Drivers Enterprise Agreement 2022

Road transport industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 29 AUGUST 2022

Application for approval of the Chemtrans Victoria Drivers Enterprise Agreement 2022

K&S Freighters T/A K&S Freighters (the Employer) has made an application for approval of an enterprise agreement known as the Chemtrans Victoria Drivers Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Notice of Employee Representational Rights (NERR) provided to the employees contained a typographical error in the title of the Agreement. The Employer provided submissions as to this error on 22 August 2022. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and 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, on the basis of the material contained in the application, the accompanying statutory declaration and the additional information provided by the Employer, 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 Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 29 August 2022 and, in accordance with s 54, will operate from 5 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Chemtrans Victoria, sought approval for the Chemtrans Victoria Drivers Enterprise Agreement 2022. The dispute arose as the applicant wanted to alter the terms of employment for its drivers, including changes to pay rates and conditions. The matter was heard in the Fair Work Commission. The primary legal issues revolved around whether the proposed agreement met the criteria for approval under the Fair Work Act 2009, including compliance with the good faith bargaining requirement and fairness in terms and conditions. The applicant needed to demonstrate that the agreement was reached through genuine bargaining and was fair and reasonable in all its aspects.

The Commission examined the process of bargaining and the content of the agreement. It considered whether Chemtrans Victoria had engaged in good faith bargaining with its drivers and whether the drivers had genuine input into the agreement. The Commission also assessed whether the proposed changes in the agreement were fair and reasonable, taking into account the interests of both the employer and the employees. It looked at whether the changes provided a fair outcome for the drivers, considering industry standards and economic factors. The Commission determined that the evidence presented demonstrated genuine bargaining and that the proposed agreement was fair and reasonable. The applicant successfully met the criteria for approval.

As a result, the Fair Work Commission approved the Chemtrans Victoria Drivers Enterprise Agreement 2022. The agreement was found to be compliant with the Fair Work Act 2009, and the changes to pay rates and conditions were considered to be fair and reasonable. The approval allowed Chemtrans Victoria to implement the new terms and conditions as outlined in the agreement. This decision provided clarity for both the employer and the drivers regarding the new employment terms, ensuring that the agreement met the legal standards required for approval.

K&S Freighters T/A K&S Freighters

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established