Kmart Australia Limited T/A Kmart Summary

[2023] FWCA 1927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kmart Australia Limited T/A Kmart

(AG2023/1854)

KMART AUSTRALIA LTD WESTERN AUSTRALIA DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2023

Retail industry
COMMISSIONER YILMAZ	MELBOURNE, 30 JUNE 2023

Application for approval of the Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2023 (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 T/A Kmart. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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.

The Agreement is approved and in accordance with s.54, will operate from 7 July 2023. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by Kmart Australia Limited, trading as Kmart, to the Fair Work Commission for the approval of the Western Australia Distribution Centre Enterprise Agreement 2023. The primary dispute centred on the fairness and compliance of the proposed enterprise agreement with the relevant labour laws and standards. The matter was heard in the Fair Work Commission, which is responsible for overseeing and approving enterprise agreements to ensure they meet specific legal criteria.

The central legal issues before the Commission were whether the agreement adequately met the requirements of the Fair Work Act 2009, particularly in relation to procedural fairness, and whether it provided for fair and reasonable terms and conditions for employees. The Commission also had to consider whether the agreement was genuinely negotiated and whether it complied with the standards and protections set forth in the Act.

In reaching its decision, the Commission examined the negotiation process, the terms of the agreement, and the feedback from employee representatives. The Commission determined that the agreement was procedurally sound, as it had been negotiated in good faith, and the employees' representatives had been adequately involved. The Commission found that the agreement contained fair and reasonable terms and conditions, which provided appropriate protections for employees while also accommodating the needs of the employer. The agreement was deemed to comply with all statutory requirements and was thus approved.

The Fair Work Commission approved the Western Australia Distribution Centre Enterprise Agreement 2023, finding it to be fair and reasonable. The decision affirmed that the agreement met all legal standards and was properly negotiated. This approval ensures that the terms and conditions set out in the agreement are legally binding and enforceable.

Kmart Australia Limited T/A Kmart

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established