Kmart Australia Limited

[2019] FWCA 1089

[2019] FWCA 1089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kmart Australia Limited
(AG2018/6533)

KMART AUSTRALIA LTD WA DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2018

Storage services
DEPUTY PRESIDENT BEAUMONT	PERTH, 20 FEBRUARY 2019

Application for approval of the Kmart Australia Ltd WA Distribution Centre Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd WA Distribution Centre Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Kmart Australia Limited. The Agreement is a single enterprise agreement.

[2] The copy of the notice of employee representational rights (NERR) lodged by the employer with its application for the approval of the Agreement was the NERR prescribed by Schedule 2.1 of the regulations immediately before 3 April 2017 (old NERR). The correct NERR for this Agreement was the one prescribed by Schedule 2.1 of the regulations with effect from 3 April 2017. Kmart mistakenly used the old NERR but had made no other changes to it, other than the text required by it including the employer’s name and the name of the enterprise agreement.

[3] In Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman) 1 the Full Bench considered that the old NERR was substantially the same as the post 3 April 2017 NERR, and whilst the provision of the old NERR constituted a minor technical error in relation to s 174, the employees covered by the Agreement would not likely be disadvantaged by the error. As was the case in Huntsman,I am satisfied that the mistaken provision of the old NERR to employees constituted a minor technical error, and the relevant employees were unlikely to be disadvantaged by the error.

[4] The Employer 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.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[6] The Shop, Distributive and Allied Employees’ Association (SDA), 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), and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] In compliance with s 190(4) of the Act, the SDA’s views regarding the undertakings provided were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. The SDA confirmed they had no objection.

[8] 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.

[9] The Agreement was approved on 20 February 2019 and, in accordance with s 54, will operate from 26 February 2019. The nominal expiry date of the Agreement is 31 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

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