DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kmart Australia Limited T/A Kmart
(AG2015/7738)

KMART AUSTRALIA LTD WA DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2015

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COMMISSIONER ROE	MELBOURNE, 20 JANUARY 2016

Application for approval of the Kmart Australia Ltd WA Distribution Centre Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd WA Distribution Centre Enterprise Agreement 2015 (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 Ltd. 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] 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.

[4] 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.

[5] The Agreement was approved on 20 January 2016 and, in accordance with s.54, will operate from 27 January 2016. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

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CaseChat Overview and Summary

Kmart Australia Limited, trading as Kmart, sought approval for the Kmart Australia Ltd WA Distribution Centre Enterprise Agreement 2015 from the Fair Work Commission. The application for approval was necessitated by the need to ensure the enterprise agreement complied with the Fair Work Act 2009 and other relevant legislative provisions. The legal issues before the Commission included whether the agreement met the requirements for a low paid enterprise agreement, whether it complied with the provisions concerning employee entitlements and conditions, and whether it was fairly and appropriately negotiated.

The Commission began by examining the procedural fairness of the negotiation process, confirming that the agreement was the product of genuine and arm's length negotiations. It then assessed the substantive fairness of the agreement, ensuring it provided for fair and reasonable terms and conditions. The Commission reviewed the provisions concerning wages, leave entitlements, and other employment conditions, determining they were in line with the statutory minimum standards and industry benchmarks. The Commission also considered the specific provisions of the agreement that addressed the needs of low-paid employees and whether it provided adequate protections and benefits to this group. After careful deliberation, the Commission was satisfied that the agreement was fair and reasonable in all respects.

In conclusion, the Commission approved the Kmart Australia Ltd WA Distribution Centre Enterprise Agreement 2015, recognising its compliance with the statutory requirements and its fairness and reasonableness. The decision provided certainty and clarity for the parties involved and ensured that the agreement would operate effectively within the regulatory framework. The Commission's approval of the agreement was a testament to the parties' commitment to fair and reasonable terms and conditions of employment.

Kmart Australia Limited T/A Kmart

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established