Joy Global Australia Pty Ltd T/A Komatsu Mining Corp.

[2022] FWCA 341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Joy Global Australia Pty Ltd T/A Komatsu Mining Corp.

(AG2021/9240)

Komatsu Mining Moss Vale Enterprise Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 FEBRUARY 2022

Application for approval of the Komatsu Mining Moss Vale Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Komatsu Mining Moss Vale Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Joy Global Australia Pty Ltd T/A Komatsu Mining Corp. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

The Form F17 filed by the Applicant indicates that a copy of the Notice of Employee Representational Rights was not provided to the employees on long term absence. I am however satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that several clauses of the Agreement may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2022. The nominal expiry date of the Agreement is 30 September 2024.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Joy Global Australia Pty Ltd trading as Komatsu Mining Corp, sought approval of the Komatsu Mining Moss Vale Enterprise Agreement 2021. The application was made to the Fair Work Commission, which is tasked with overseeing the approval and enforcement of enterprise agreements under the Fair Work Act 2009. The dispute centred around the provisions of the proposed agreement, which included terms regarding employment conditions, wages, and other workplace matters. The nature of the disagreement was whether the agreement met the requirements for approval under the legislation.

The central legal issue before the Commission was whether the proposed agreement complied with the statutory criteria set out in the Fair Work Act. This involved ensuring that the agreement did not provide for terms and conditions that were less favourable than the applicable national workplace determinations or modern awards, and that it was appropriately certified by an independent officer. Additionally, the Commission had to consider whether the agreement had been fairly negotiated and if it contained certain mandated provisions, such as those relating to minimum working conditions and the process for resolving disputes. The fairness of the agreement was also assessed based on the evidence provided regarding the negotiation process and the views of the parties involved.

In its decision, the Commission examined the evidence and arguments presented by both the applicant and the objectors to the agreement. The Commission determined that the agreement met the legislative criteria for approval, including the mandated provisions and the absence of less favourable terms. The negotiation process was found to be fair, and the agreement was deemed to be in the best interests of the employees, given the evidence provided. The Commission approved the application, finding that the agreement was fair and appropriately negotiated. The final orders confirmed the approval of the Komatsu Mining Moss Vale Enterprise Agreement 2021, allowing it to come into effect as per the terms outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established