Application for approval of the Kmart & UWU Truganina Customer Fulfilment Centre Enterprise Agreement 2025

[1] Kmart Australia Limited trading as Kmart (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Kmart & UWU Truganina Customer Fulfilment Centre Enterprise Agreement 2025 (the Agreement).

[2] The United Workers Union (UWU) 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 UWU.

[3] The Agreement includes some rates of pay that are very close to the Storage Services and Wholesale Award (the Award). In particular, Level 1 permanent storeworker and Level 2-4 casual storeworkers.

[4] The Agreement also includes a number of provisions which appear to be less beneficial than the Award, including an increased span of ordinary hours and a less beneficial definition of early morning shift.

[5] In response to my BOOT concerns Kmart made the following submissions:

1. There is a facilitative provision in the Award that allows the spread of hours to be altered by agreement.

2. It is not reasonably foreseeable that employees would work ordinary hours outside of the current set standard shifts, which are as follows:

   • 6.00am to 2.00pm (Day Shift);

   • 2.30pm to 10.30pm (Afternoon Shift); and

   • 9.00pm to 5.00am (Night Shift).

3. It is not reasonably foreseeable that casual employees or apprentices would be engaged under the Agreement.

4. Upon my request for an undertaking addressing my concerns relating to casual employees, Kmart proposed to provide an undertaking increasing the casual rate 2 cents above the Award.

[6] I am not persuaded that in applying the better off overall test I should compare the Agreement with a hypothetical agreement under the facilitative provision in the Award. Kmart argued the Agreement vote provided the agreement required by the facilitative provision in the Award. I am reluctant to accept this circular argument. While the material provided to employees before the vote included a general comparison of the Agreement and the Award, there was no evidence about a specific discussion and agreement on hours, nor any evidence of information provided about the impact the Agreement provisions have on Award overtime provisions and penalty rates.

[7] Despite my reservations around the facilitative provision submissions, I have found that the Agreement passes the BOOT for permanent employees in any event. This is because:

• I accept Kmart's submission it is not reasonably foreseeable that employees will work hours outside of the set shifts.

• I am also of the view that that there are a number of other beneficial entitlements included in the Agreement that on a global perspective mean permanent employees are better off under the Agreement.

[8] In relation to casual employees, I accept Kmart's submission that there are no casual employees engaged under the Agreement, and it is not reasonably foreseeable that casual employees will be engaged under this Agreement. Therefore, I do not need to determine the BOOT in relation casual employees.

[9] In relation to apprentices, I also accept Kmart's submissions that it is not reasonably foreseeable that apprentices will be engaged under the Agreement, and therefore, I do not need to determine the BOOT in relation to apprentices.

[10] For the reasons given above, 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.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 November 2025. The nominal expiry date of the Agreement is 30 May 2028.

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