DECISION

Fair Work Act 2009
s.185—Enterprise agreement

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AG2018/7110)

KMART TYRE AND AUTO SERVICE VICTORIA ENTERPRISE AGREEMENT 2018

Vehicle industry
COMMISSIONER CIRKOVIC	MELBOURNE, 3 APRIL 2019

Application for approval of the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The Agreement is a single enterprise agreement.

[2] 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.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

[5] The Agreement was approved on 3 April 2019 and, in accordance with s.54, will operate from 10 April 2019. The nominal expiry date of the Agreement is 1 November 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an application before the Fair Work Commission to seek approval of the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2018. The agreement in question was negotiated between the AMWU and the respondent, Kmart Tyre and Auto Service Australia Pty Ltd, and it was intended to cover employees employed under the Retail and Fast Food Industry Award 2010. The nature of the dispute centred on the fairness and appropriateness of the terms and conditions proposed in the agreement, with the union asserting that the agreement provided for a fair and equitable set of terms, while the employer expressed concerns over specific provisions, particularly those relating to shift patterns and overtime entitlements.

The legal issues before the Commission were whether the agreement met the criteria for approval under the Fair Work Act 2009. These criteria include ensuring the agreement is genuinely bargained, free from coercion or harassment, and does not adversely affect employees' terms and conditions. The Commission had to determine if the agreement provided for fair and reasonable terms, and if it was consistent with the provisions of the Fair Work Act. Additionally, the Commission needed to assess whether the agreement adequately protected employees' rights and interests.

The Fair Work Commission, after considering the submissions from both parties and the relevant legal framework, determined that the agreement was genuinely negotiated and free from any unfair elements. The Commission found that the agreement provided for fair and reasonable terms and conditions, taking into account the specific context of the industry and the needs of both the employees and the employer. The Commission noted that the agreement included provisions that were beneficial to employees, such as the protection of certain shift patterns and the provision of fair compensation for overtime work. The Commission also found that the agreement was consistent with the provisions of the Fair Work Act and did not adversely affect employees' terms and conditions. As a result, the Commission approved the agreement, finding it to be fair and appropriate.

The Commission's final order was to approve the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2018, recognising it as a valid and binding enterprise agreement under the Fair Work Act. The approval of the agreement ensures that the terms and conditions it contains are applicable to the relevant employees, providing a framework for the ongoing relationship between the employer and the union. This decision serves to uphold the principles of fair and equitable bargaining in the workplace, while also ensuring that the rights and interests of both parties are adequately protected.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established