The Australian Industry Group

[2022] FWCA 3903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Australian Industry Group

(AG2022/4532)

Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2022

Retail industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 7 NOVEMBER 2022

Application for approval of the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2022

The Australian Industry Group (the AIG) has made an application for approval of an enterprise agreement known as the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

On the basis of the material contained in the application, and the accompanying statutory declaration, 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 and the United Workers’ Union, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisations, I note that the Agreement covers the organisations.

The Agreement was approved on 7 November 2022 and, in accordance with s 54, will operate from 14 November 2022. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Industry Group sought approval of the Kmart Australia Ltd Lytton Distribution Centre Enterprise Agreement 2022 in the Fair Work Commission. The applicant argued the enterprise agreement provided for the terms and conditions of employment for employees working at the Lytton Distribution Centre. The nature of the dispute was centred around whether the agreement met the requirements of the Fair Work Act 2009 in terms of procedural fairness and whether the agreement's provisions were within the scope of the Fair Work Act's "better off overall test".

The court was required to determine whether the agreement was fairly negotiated and whether it complied with the statutory requirements of the Fair Work Act. This included assessing whether the agreement met the "better off overall test", which requires that the agreement must provide employees with no less than the applicable award or registered agreement, and that it must be better off overall for employees than if the agreement had not been made. The court also needed to consider whether the agreement was made in accordance with the relevant procedural requirements, including whether there was sufficient consultation and whether employees had the opportunity to vote on the agreement.

The Fair Work Commission found that the agreement was fairly negotiated and met the "better off overall test". The Commission also found that the agreement was made in accordance with the relevant procedural requirements, including sufficient consultation and the opportunity for employees to vote on the agreement. The Commission approved the agreement, noting that it provided for a range of benefits for employees, including pay increases and improved leave entitlements. The Commission also noted that the agreement provided for a transparent and fair process for the resolution of disputes between employees and employers.

In approving the enterprise agreement, the Commission made an order that the agreement be registered and that it would have effect from the date of the order. The order also provided for the agreement to be binding on all employees covered by the agreement, as well as on the employer. The order was made subject to any appeal to the Federal Court or the Full Bench of the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established