Komatsu Australia Pty Ltd

[2023] FWCA 297

[2023] FWCA 297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Komatsu Australia Pty Ltd

(AG2022/5493)

KOMATSU AUSTRALIA TASMANIA SERVICE DEPARTMENT ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 1 FEBRUARY 2023

Application for approval of the Komatsu Australia Tasmania Service Department Enterprise Agreement 2022

1. Komatsu Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Komatsu Australia Tasmania Service Department Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Applicant did not provide seven clear days between notification of the vote and the commencement of the vote as required by s 180(3) of the Act. In response to this issue, the Applicant submitted that the delay was the result of managers responsible for organising the vote not being based in the branches where the vote would take place, and difficulty experienced in finding a suitable time for the ballot which would ensure all employees were available at the time of the vote.

1. The Applicant added that its employees were very familiar with the voting process and understood it would be a paper ballot.  According to the Applicant, the employees were not disadvantaged and had sufficient opportunity to cast a vote as evidenced by the fact that all eligible employees cast votes, and all voted to approve the Agreement.  I am satisfied, having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd,[1] that the abovementioned error constituted a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that the employees were not likely to have been disadvantaged by the error.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The Agreement was approved on 1 February 2023 and, in accordance with s 54, will operate from 8 February 2023.  The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

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