DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kmart Australia Limited
(AG2019/2239)

KMART EASTERN CREEK (NUW) DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2019

Retail industry
COMMISSIONER CIRKOVIC	MELBOURNE, 24 JULY 2019

Application for approval of the Kmart Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2019 (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] 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.

[4] The Agreement was approved on 24 July 2019 and, in accordance with s.54, will operate from 31 July 2019. The nominal expiry date of the Agreement is 31 May 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Kmart Australia Limited, the Fair Work Commission was asked to approve the Kmart Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2019. This application came about due to a dispute between the employer and the employees regarding the terms and conditions of their employment. The court had to determine if the agreement was fair and reasonable, and if it complied with the necessary legal requirements.

The central issue before the court was whether the proposed enterprise agreement met the standards set out in the Fair Work Act 2009. Specifically, the court needed to assess if the agreement provided for terms and conditions that were no less favourable than the relevant awards and if it was free from any unfair content. Additionally, the court had to consider whether the agreement had been genuinely negotiated and if it contained the necessary provisions to facilitate effective communication and dispute resolution between the parties.

The Fair Work Commission found that the proposed agreement was fair and reasonable, and in line with the requirements of the Act. The court noted that the agreement had been genuinely negotiated and contained provisions for effective communication and dispute resolution. Furthermore, the agreement provided for terms and conditions that were no less favourable than the relevant awards and did not contain any unfair content. As a result, the court approved the Kmart Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2019. This decision ensures that the employees covered by the agreement will benefit from the agreed terms and conditions of employment.

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