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

[2013] FWCA 957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AG2013/25)

KMART TYRE & AUTO SERVICE NSW/ACT ENTERPRISE AGREEMENT 2012

Vehicle industry
COMMISSIONER BULL	SYDNEY, 11 FEBRUARY 2013

Application for approval of the Kmart Tyre & Auto Service NSW/ACT Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Tyre & Auto Service NSW/ACT Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] The Commission requested advice with respect to clause 3 - Definitions, and in particular subclause 3.14(b), as to how the subclause is not unlawful age discrimination. The Applicant (being the AMWU) and the employer have subsequently advised the Commission that subclause 3.14(b) shall not be a term of the Agreement and have provided an undertaking to this effect.

[3] An undertaking with respect to clause 13 - Dispute settlement procedures, and the appointment of a representative by the employee, has been provided by the employer.

[4] An undertaking with respect to redundancy provisions, that they shall apply pursuant to the parent award notated at subclause 4.2 of the Agreement, has been provided by the employer.

[5] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[6] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[7] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers this organisation.

[8] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 18 February 2013. The nominal expiry date of the Agreement is three years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), which sought approval of the Kmart Tyre & Auto Service NSW/ACT Enterprise Agreement 2012. The primary focus of the case was to determine whether the enterprise agreement met the criteria for approval under the Fair Work Act 2009.

The key legal issues the court needed to address were whether the agreement contained all the required provisions, whether it was free from unlawful content, and whether it complied with the "better off overall test" as stipulated by the Fair Work Act. The court was tasked with examining the agreement to ensure it covered all mandated topics, was lawful, and ensured that employees were no worse off financially than under their previous conditions.

The court meticulously reviewed the agreement, confirming that it contained all the necessary provisions and was free from unlawful content. It also assessed whether the agreement satisfied the better off overall test, which required the court to consider if the agreement would provide employees with a benefit on the whole, taking into account all factors. After thorough analysis, the court concluded that the agreement met all the legislative requirements for approval. Consequently, the court granted the AMWU's application for approval of the Kmart Tyre & Auto Service NSW/ACT Enterprise Agreement 2012.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established