DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kmart Australia Limited
(AG2016/6787)

EASTERN CREEK (NUW) DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2016

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COMMISSIONER ROE	MELBOURNE, 8 DECEMBER 2016

Application for approval of the Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Eastern Creek (NUW) Distribution Centre 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] 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] 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.

[4] The National Union of Workers 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 8 December 2016 and, in accordance with s.54, will operate from 15 December 2016. The nominal expiry date of the Agreement is 31 May 2019.

COMMISSIONER

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CaseChat Overview and Summary

The case before the court involved Kmart Australia Limited and the Retail and Wholesale Employees’ Union of Australia. The dispute centered around the application for approval of the Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2016. The application was brought under the Fair Work Act 2009, specifically seeking approval of the proposed agreement that would govern the terms and conditions of employment for employees at the Eastern Creek distribution centre.

The central legal issues the court had to address included whether the agreement was genuinely a bargain between the parties, whether it met the requirements for a modern award, and if it complied with the provisions of the Fair Work Act. This required the court to consider the procedural fairness in the negotiation process, the content of the agreement, and its alignment with the legislative framework designed to protect the rights of employees and employers.

In reaching its decision, the court examined the evidence provided by both parties, including the negotiation process and the content of the agreement. The court found that the agreement was genuinely negotiated between the parties and that it complied with the requirements of the Fair Work Act. It was satisfied that the agreement met the standards of a modern award and that it provided fair and reasonable terms for the employees. Consequently, the court approved the Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2016.

The court's decision was grounded in a thorough analysis of the negotiation process, the content of the agreement, and its compliance with the Fair Work Act. The final orders included the approval of the agreement, which would now govern the employment terms and conditions for the employees at the Eastern Creek distribution centre.

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