DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kmart Australia Limited
(AG2016/7921)

KMART AUSTRALIA LTD LYTTON DISTRIBUTION CENTRES ENTERPRISE AGREEMENT 2016

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COMMISSIONER GREGORY	MELBOURNE, 24 JANUARY 2017

Application for approval of the Kmart Australia Ltd Lytton Distribution Centres Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd Lytton Distribution Centres Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kmart Australia Limited. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Shop, Distributive and Allied Employees Association 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2017. The nominal expiry date of the Agreement is 31 July 2019.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

The applicant, Kmart Australia Limited, sought approval for the Lytton Distribution Centres Enterprise Agreement 2016. The dispute centred around whether the agreement complied with the relevant industrial relations laws and if it was fair and reasonable for the employees it covered. The Fair Work Commission heard the application.

The central legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009 and if it could be considered fair and reasonable. The Commission examined if the agreement provided for a proper balance of rights and obligations, if it was free from coercion and undue influence, and if it complied with the procedural requirements.

In assessing the application, the Commission considered various factors including the process followed in negotiating the agreement, the nature of the terms proposed, and whether the agreement provided for a fair and reasonable outcome for the employees. The Commission found that the agreement was properly negotiated and provided for a fair balance of rights and obligations. It also concluded that the agreement met all statutory requirements and was fair and reasonable for the employees it covered. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Kmart Australia Limited Lytton Distribution Centres Enterprise Agreement 2016, finding it compliant with the relevant industrial relations laws and fair and reasonable for the employees it covered. The approval was effective from the date of the decision, and the agreement was to be implemented accordingly.

Kmart Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established