Kmart Australia Limited Summary

[2013] FWCA 10174

FAIR WORK COMMISSION

DECISION

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

Kmart Australia Limited
(AG2013/12039)

KMART AUSTRALIA LTD LYTTON DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2013

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COMMISSIONER ROE	MELBOURNE, 23 DECEMBER 2013

Application for approval of the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2013 (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 Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act 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 National Union of Workers and the Shop, Distributive and Allied Employees Association have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the two organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 December 2013. The nominal expiry date of the Agreement is 31 July 2016.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission (FWC) heard an application for the approval of the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2013. The application was brought by the employer, Kmart Australia Limited, and the relevant trade union, the Shop, Distributive and Allied Employees' Association (SDA). The dispute centred around whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009 (Cth), particularly in relation to the process of its negotiation and the substantive terms it contained.

The primary legal issues before the FWC were whether the agreement had been negotiated in good faith, whether the parties had complied with the procedural requirements set out in the Act, and whether the substantive terms of the agreement met the criteria for approval under the Fair Work Act. Specifically, the FWC needed to determine if the agreement provided for a fair and efficient workplace, and if it allowed for genuine flexibility and productivity. The FWC also had to consider if the agreement unfairly disadvantaged any class of employee.

The FWC found that the agreement had been negotiated in good faith and that the parties had complied with the procedural requirements of the Act. It was noted that the agreement contained provisions for a fair and efficient workplace and provided for genuine flexibility and productivity. The FWC considered the substantive terms of the agreement and found that they met the criteria for approval. The FWC was satisfied that the agreement did not unfairly disadvantage any class of employee. Based on these findings, the FWC approved the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2013.

Kmart Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established