DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Appeal by Shop, Distributive and Allied Employees Association
(C2019/5635)

Appeal by Kmart Australia Limited t/a Kmart
(C2019/5636)

Appeal by The Australian Workers’ Union

(C2019/5771)

Appeals against decision [2019] FWC 6105 of Deputy President Mansini at Melbourne on 2 September 2019 in matter number AG2018/6995.

[1] Pursuant to directions made in our earlier decision in this matter issued on 11 November 2019 1 (first decision), Kmart Australia Limited (Kmart) filed a consolidated and signed copy of the undertakings it proposes in connection with its application for approval of the Kmart Australia Ltd Agreement 2018 (Agreement) on 12 November 2019. We also received on 18 November 2019, pursuant to the same directions and s 190(4) of the Fair Work Act 2009 (FW Act), submissions in relation to those proposed undertakings from two of the bargaining representatives for the Agreement, namely the Shop, Distributive and Allied Employees’ Association (SDAEA) and the Retail and Fast Food Workers Union Incorporated (RFFWUI). The other bargaining representative, the Australian Workers’ Union, did not file a submission. We note that it had earlier submitted at the appeal hearing that it did not oppose acceptance of the proposed undertakings.

[2] The SDAEA simply submitted that it did not oppose acceptance of the undertakings. The RFFWUI stated that it had no further submissions beyond those made at earlier stages of the proceedings and that the Commission could not be satisfied that the Agreement passed the BOOT. The RFFWUI submissions did not address the prerequisites for the acceptance of undertakings set out in paragraphs (a) and (b) of s 190(3) of the FW Act.

[3] We confirm the provisional views we expressed at paragraphs [48] and [59] of the first decision, namely that the undertakings would address the concerns we identified as to whether the Agreement passed the better off overall test as required by s 186(2)(d), and that the effect of accepting the undertakings is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[4] Accordingly we accept the proposed undertakings. A signed copy of the consolidated undertakings given by Kmart in respect of the Agreement is attached as Annexure A.

[5] On this basis, we are satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to the application for approval of the Agreement have been met.

[6] The SDAEA and the AWU have given notice under s 183 of the FW Act that they want the Agreement to cover them. In accordance with s 201(2) of the FW Act we note that the Agreement covers the SDAEA and the AWU.

[7] The Agreement is approved and, in accordance with s 54 of the FW Act, will operate from 27 November 2019. In accordance with clause 3.1 of the Agreement, the nominal expiry date of the Agreement is 28 February 2023.

VICE PRESIDENT

Further written submissions:

Kmart Australia Limited t/a Kmart: 12 November 2019

Shop, Distributive and Allied Employees’ Association: 18 November 2019

Retail and Fast Food Workers Union Incorporated: 18 November 2019

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 7599 at [66]

ANNEXURE A