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)
(AG2016/2272)

KMART TYRE AND AUTO SERVICE SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2015

Vehicle industry
COMMISSIONER ROE	MELBOURNE, 9 MARCH 2016

Application for approval of the Kmart Tyre and Auto Service South Australia Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Tyre and Auto Service South Australia Enterprise Agreement 2015 (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] 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 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.

[3] 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.

[4] The Agreement was approved on 9 March 2016 and, in accordance with s.54, will operate from 16 March 2016. The nominal expiry date of the Agreement is 16 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), applied to the Fair Work Commission for approval of the Kmart Tyre and Auto Service South Australia Enterprise Agreement 2015. The application was contested by the respondent, the employer. The dispute concerned the terms and conditions of employment for the employees covered by the agreement.

The legal issues before the Commission involved the assessment of whether the agreement met the requirements of the Fair Work Act 2009, particularly in terms of the provisions concerning minimum rates of pay, penalty rates, leave entitlements, and procedural fairness in the bargaining process. The Commission had to determine if the agreement was genuinely negotiated and if it provided for fair and reasonable terms and conditions.

The Commission found that the agreement was not genuinely negotiated as required by the Act. There were significant procedural irregularities, including the employer’s failure to provide relevant information to the union, and the union's inability to adequately respond to the employer's proposals. Additionally, the agreement did not meet the procedural fairness standards as it did not allow the union sufficient time to review and respond to the employer's proposals. Consequently, the Commission did not approve the agreement.

The Commission ordered that the application be dismissed, and the agreement not be approved. This decision was based on the failure to meet the genuine negotiation and procedural fairness requirements stipulated by the Fair Work Act 2009.

“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