K&S Freighters T/A K&S Freighters

[2022] FWCA 221

[2022] FWCA 221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters T/A K&S Freighters

(AG2021/9097)

K&S Energy Chemtrans Port Kembla Agreement 2021

Road transport industry
COMMISSIONER O'NEILL	MELBOURNE, 27 JANUARY 2022

Application for approval of the K&S Energy Chemtrans Port Kembla Agreement 2021

1. K&S Freighters has applied for approval of an enterprise agreement known as the K&S Energy Chemtrans Port Kembla Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. 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.

1. Subject to the undertakings referred to 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.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 14 – Casual Employees;

·           Clause 21(g) – Redundancy; and

·           Clause 22(b) – Minimum Term of Engagement and Termination.

However, noting the undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 February 2022. The nominal expiry date of the Agreement is 1 May 2023.

COMMISSIONER

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Annexure A