"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Komatsu Australia Pty Ltd

[2023] FWC 298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

Komatsu Australia Pty Ltd

(B2023/69)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 FEBRUARY 2023

Proposed protected action ballot of employees of Komatsu Australia Pty Ltd

This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Komatsu Australia Pty Ltd (Respondent).

On 1 February 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Gary Carozzi of the Applicant declared on 31 January 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR750212.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union (AMWU), filed an application under section 437 of the Fair Work Act 2009 against Komatsu Australia Pty Ltd. The AMWU sought a protected action ballot order concerning certain employees of Komatsu Australia. The Fair Work Commission was informed on 1 February 2023 that Komatsu Australia did not oppose the application. Consequently, the Vice President Catanzariti decided to decide the matter on the papers without conducting a hearing.

The legal issues before the court involved determining whether the AMWU had genuinely attempted to negotiate with Komatsu Australia and if the notification time for the proposed agreement had been met, as required by section 443(1) of the Fair Work Act. The AMWU provided a statutory declaration from Gary Carozzi, dated 31 January 2023, which outlined the steps taken by the union in bargaining with Komatsu Australia and affirmed that the union had been genuinely attempting to reach an agreement with the company.

The Vice President Catanzariti was satisfied, based on the material presented, that the AMWU had genuinely tried to reach an agreement with Komatsu Australia and that the notification time for the proposed agreement had been met. The statutory declaration provided by the AMWU demonstrated the union's efforts in bargaining with the company and its commitment to reaching an agreement. The court found that the requirements of section 443(1) of the Fair Work Act had been satisfied, and an Order was issued separately in PR750212.

The Fair Work Commission's decision was to grant the AMWU's application for a protected action ballot order concerning certain employees of Komatsu Australia. The court found that the union had genuinely attempted to negotiate with Komatsu Australia and that the notification time for the proposed agreement had been met. The decision was made on the papers, without the need for a hearing, as Komatsu Australia did not oppose the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established