Kmart Australia Limited T/A Kmart Summary

[2022] FWCA 356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kmart Australia Limited T/A Kmart

(AG2021/9302)

Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2021

Retail industry
COMMISSIONER WILLIAMS	PERTH, 7 FEBRUARY 2022

Application for approval of the Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2021 (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 as are relevant to this application for approval have been met.

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 of the Act, will operate from 14 February 2022. The nominal expiry date of the Agreement is 31 March 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Kmart Australia Limited trading as Kmart, the Fair Work Commission was presented with an application for the approval of the Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2021. The applicant, Kmart Australia, sought to have the proposed enterprise agreement recognised as meeting the requirements of the Fair Work Act 2009. The application was made under section 231 of the Act, which allows for the approval of enterprise agreements that meet specific criteria, including the protection of employees' rights and interests.

The legal issues before the Commission centred on whether the proposed agreement complied with the statutory requirements set out in the Fair Work Act. This included ensuring that the agreement provided for minimum entitlements such as wages, hours of work, and leave, as well as addressing any other terms and conditions of employment. The Commission also needed to determine whether the agreement had been made in good faith and without any coercion, as well as considering the views of the employees affected by the agreement.

After reviewing the application and the proposed agreement, the Commission found that the agreement met the necessary statutory requirements. The Commission was satisfied that the agreement provided for the minimum entitlements of employees and that it had been made in good faith. The Commission also considered the views of the employees, which were generally supportive of the agreement. As a result, the Commission approved the application and the Kmart Australia Ltd Western Australia Distribution Centre Enterprise Agreement 2021 was recognised as meeting the requirements of the Fair Work Act. The approval of the agreement allows it to be registered with the Fair Work Commission, which provides it with legal enforceability and ensures that the terms and conditions of employment are protected for the employees covered by the agreement.

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