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)
(AG2018/7262)

KMART TYRE & AUTO SERVICE NSW/ACT ENTERPRISE AGREEMENT 2018

Vehicle industry
COMMISSIONER CIRKOVIC	MELBOURNE, 27 MARCH 2019

Application for approval of the Kmart Tyre & Auto NSW-ACT Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Tyre & Auto NSW-ACT 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 the “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 27 March 2019 and, in accordance with s.54, will operate from 3 April 2019. The nominal expiry date of the Agreement is 26 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought approval of the Kmart Tyre & Auto NSW-ACT Enterprise Agreement 2018 from the Fair Work Commission (FWC). The union and Kmart Tyre & Auto Services had negotiated this agreement, which covered employees working in tyre and automotive services in New South Wales and the Australian Capital Territory. The union applied for the agreement to be approved under the "no objection" process, where the FWC approves an agreement if it meets certain conditions, including that it does not have an adverse effect on safety and that it does not contain any terms that would be contrary to public policy.

The legal issues the FWC considered included whether the agreement met the requirements of the Fair Work Act 2009, including the "better off overall test" (BOOT), which requires that employees be no worse off financially than they would be under the applicable award. The FWC also had to determine if the agreement contained any terms that would be contrary to public policy, such as terms that might incentivise unsafe work practices or that would otherwise be unlawful. The FWC considered submissions from the union, Kmart, and other interested parties.

The FWC found that the agreement met the BOOT, as the union had demonstrated that the proposed agreement would result in employees being better off overall than under the applicable award. The FWC also found that the agreement did not contain any terms that would be contrary to public policy, including terms that might incentivise unsafe work practices. The FWC noted that the agreement contained safety provisions that went beyond those required by law, including provisions for the safe operation of equipment and the use of personal protective equipment. The FWC also found that the agreement provided for reasonable arrangements for the protection of employees' health and welfare.

The FWC approved the Kmart Tyre & Auto NSW-ACT Enterprise Agreement 2018, subject to certain minor modifications to clarify some provisions. The union and Kmart were required to provide a copy of the approved agreement to the FWC within 28 days of the decision. The union was also required to inform employees of the approved agreement and to provide them with a copy of the agreement.

"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