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

[2022] FWC 533

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

(B2022/165)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MARCH 2022

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 7 March 2022, 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 Kegan Wilson Scherf of the Applicant declared on 3 March 2022, 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 PR739178.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of its members, applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Komatsu Australia Pty Ltd. The AMWU sought to conduct a ballot for potential protected action by the employees, as permitted under section 437 of the Fair Work Act 2009. Komatsu Australia Pty Ltd did not oppose the application, and the matter proceeded without a formal hearing. The AMWU submitted evidence that it had been genuinely attempting to reach an agreement with Komatsu Australia Pty Ltd and that the notification period for the proposed agreement had elapsed.

The primary legal issue before the Fair Work Commission was whether the AMWU had met the requirements under the Fair Work Act 2009 to conduct a ballot for protected action. Specifically, the Commission needed to determine if the AMWU had genuinely been engaged in good-faith bargaining and if the notification period for the proposed agreement had been properly observed. The AMWU's application was supported by a statutory declaration from Kegan Wilson Scherf, detailing the union's efforts in bargaining and the steps taken to meet the statutory requirements.

In issuing the decision, Vice President Catanzariti found that the AMWU had satisfied the prerequisites set out in section 443(1) of the Fair Work Act 2009. The Vice President was satisfied with the evidence provided by the AMWU, including the statutory declaration, which demonstrated the union's genuine efforts in bargaining and the compliance with the notification period. Consequently, the application for a protected action ballot order was granted, and the AMWU was authorised to proceed with the ballot as requested.

As a result of the decision, the Fair Work Commission issued an order permitting the AMWU to conduct the protected action ballot for the employees of Komatsu Australia Pty Ltd, in accordance with the provisions of the Fair Work Act 2009. This order was issued separately in PR739178.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established