DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kmart Australia Ltd
(AG2019/3402)

KMART AUSTRALIA LTD LYTTON DISTRIBUTION CENTRES ENTERPRISE AGREEMENT 2019

Retail industry
COMMISSIONER GREGORY	MELBOURNE, 30 OCTOBER 2019

Application for approval of the Kmart Australia Ltd Lytton Distribution Centres Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Australia Ltd Lytton Distribution Centres 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 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.

[3] Pursuant to s.202(4) of the Act, the model flexibility 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 is approved and, in accordance with s.54 of the Act, will operate from 6 November 2019. The nominal expiry date of the Agreement is 31 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kmart Australia Ltd applied for the approval of an enterprise agreement between the company and its employees at the Lytton Distribution Centre. The application was heard in the Fair Work Commission. The primary dispute was whether the proposed enterprise agreement met the statutory requirements for approval, including compliance with the provisions of the Fair Work Act 2009. The application required the Commission to consider whether the agreement provided for the terms and conditions of employment in a fair and flexible manner, and whether it was made in good faith.

The legal issues before the Commission included whether the agreement appropriately balanced the interests of the employer and employees, whether it provided adequate protections and benefits, and whether it complied with the procedural requirements for enterprise agreements. A key issue was whether the agreement contained provisions that could be considered to have an adverse effect on employees' terms and conditions of employment. The Commission also needed to assess whether the agreement was genuinely negotiated and whether the application for approval was made in accordance with the statutory provisions.

The Fair Work Commission found that the proposed agreement was made in good faith and provided for the terms and conditions of employment in a fair and flexible manner. The agreement was deemed to adequately balance the interests of both parties and did not contain provisions that had an adverse effect on employees. The Commission concluded that the agreement was genuinely negotiated and met the procedural requirements for enterprise agreements. As such, the Commission approved the application for the Kmart Australia Ltd Lytton Distribution Centres Enterprise Agreement 2019.

The final orders included the approval of the enterprise agreement, which would now apply to the employees at the Lytton Distribution Centre. The agreement was to be registered with the Fair Work Commission and would be subject to the provisions of the Fair Work Act 2009. The decision was made in light of the evidence presented, which demonstrated that the agreement was fair and flexible, and that the application process was conducted in accordance with the law.

Kmart Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established