Komatsu Australia Pty Ltd Summary

[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

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.

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.

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.

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.

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission heard an application for the approval of the Komatsu Australia Tasmania Service Department Enterprise Agreement 2022. The agreement was submitted by Komatsu Australia Pty Ltd, which is an employer, and the United Workers Union, which is a trade union. The agreement seeks to regulate the terms and conditions of employment for employees in the Tasmania Service Department of the company. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the provision of genuine bargaining, and whether it contained terms and conditions that were fair and reasonable.

The legal issues that the Commission was required to determine were whether the agreement was the product of genuine bargaining, and whether the agreement contained terms and conditions that were fair and reasonable. The Commission also had to consider whether the agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement for the agreement to be in writing and to contain certain minimum terms and conditions. Furthermore, the Commission had to consider whether the agreement met the requirements of the High Court's decision in Western Australia v CGU Insurance Ltd, which sets out the principles for determining whether an agreement is a genuine enterprise agreement.

The Commission found that the agreement was the product of genuine bargaining and that it contained terms and conditions that were fair and reasonable. The Commission noted that the parties had engaged in a significant period of bargaining, which included multiple meetings and the exchange of numerous proposals and counter-proposals. The Commission also found that the agreement contained terms and conditions that were consistent with the principles set out in the High Court's decision in Western Australia v CGU Insurance Ltd. In particular, the Commission found that the agreement contained provisions relating to wages, leave, and other terms and conditions that were consistent with the principles of enterprise bargaining. The Commission also found that the agreement complied with the relevant provisions of the Fair Work Act 2009, including the requirement for the agreement to be in writing and to contain certain minimum terms and conditions.

The Commission approved the Komatsu Australia Tasmania Service Department Enterprise Agreement 2022, subject to certain modifications to ensure that it complied with the Fair Work Act 2009. The modifications related to the provision of notice of termination of employment and the requirement for the agreement to specify the duration of the agreement. The Commission noted that these modifications were minor and did not affect the overall fairness and reasonableness of the agreement. The Commission also noted that the modifications were consistent with the principles set out in the High Court's decision in Western Australia v CGU Insurance Ltd. The Commission considered that the agreement, as modified, met the requirements of the Fair Work Act 2009 and was a genuine enterprise agreement.

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