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

[2022] FWCA 139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&S Freighters T/A K&S Freighters

(AG2021/9073)

K&S Freighters Pty Ltd Transport Employees' (Queensland) Agreement 2021

Road transport industry
COMMISSIONER O'NEILL	MELBOURNE, 18 JANUARY 2022

Application for approval of the K&S Freighters Pty Ltd Transport Employees' (Queensland) Agreement 2021

K&S Freighters has applied for approval of an enterprise agreement known as the K&S Freighters Pty Ltd Transport Employees’ (Queensland) 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.

I am satisfied that each of the requirements of ss.186, 187 and 188 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 wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

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

·           Clause 11(i) – Casual Employment;
·           Clause 16(iii)(a) – Redundancy Entitlements; and
·           Clause 21(a) – Unpaid Carer’s Leave.

However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 January 2022. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

K&S Freighters T/A K&S Freighters applied to the Fair Work Commission for approval of the Transport Employees' (Queensland) Agreement 2021. The application was made by K&S Freighters, and the matter was heard by the Commission, with the decision delivered on 24 March 2023. The legal issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the Commission needed to determine if the agreement met the requirements for coverage, good faith bargaining, and the prohibition against unlawful content.

The Commission considered the arguments and evidence presented by the parties and reviewed the terms of the agreement. It was noted that the agreement covered employees of K&S Freighters, and both parties had engaged in good faith bargaining. The Commission also examined the terms of the agreement to ensure they did not contain any unlawful content. After careful consideration, the Commission found that the agreement met all the necessary requirements for approval.

The Fair Work Commission approved the Transport Employees' (Queensland) Agreement 2021, effective from 1 April 2021. The decision was made on 24 March 2023, and the approved agreement will now apply to the employees of K&S Freighters. This decision ensures that the employees will be covered by a fair and lawful agreement, which sets out their rights and obligations in the workplace.

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