Komatsu Australia Pty Ltd

[2022] FWCA 519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Komatsu Australia Pty Ltd

(AG2021/9113)

Komatsu Australia Mount Thorley Service Department Enterprise Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 15 FEBRUARY 2022

Application for approval of the Komatsu Australia Mount Thorley Service Department Enterprise Agreement 2021.

Komatsu Australia Pty Ltd (the Employer) has made an application for the approval of the Komatsu Australia Mount Thorley Service Department Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 5.2 – Personal/Carers Leave is potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AMWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 February 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Komatsu Australia Pty Ltd was before the Fair Work Commission, where it sought approval of the Komatsu Australia Mount Thorley Service Department Enterprise Agreement 2021. The agreement was submitted for consideration under section 232 of the Fair Work Act 2009. The dispute arose between Komatsu Australia Pty Ltd and the Australian Manufacturing Workers Union, with the union objecting to certain aspects of the proposed agreement on the grounds that it failed to meet the "better off overall test" and did not provide adequate protections for employees.

The central legal issue before the commission was whether the agreement met the statutory requirements for approval under the Fair Work Act. Specifically, the commission had to determine if the agreement satisfied the "better off overall test", which requires that the agreement must not reduce the overall pay and conditions of employees compared to their previous terms of employment or the applicable award or registered agreement. The commission also needed to consider whether the agreement complied with the good faith bargaining provisions of the Act.

In considering these issues, the commission examined the evidence presented by both parties, including submissions and expert testimony. The commission found that while some provisions of the agreement did not meet the better off overall test, the overall effect of the agreement was that employees would be better off. The commission also found that the parties had engaged in good faith bargaining, and that the agreement reflected the genuine outcomes of that process. Accordingly, the commission approved the agreement.

The commission ordered that the Komatsu Australia Mount Thorley Service Department Enterprise Agreement 2021 be approved as a registered agreement under the Fair Work Act. The agreement was to commence on the first day of the first pay period after the date of the decision, and would remain in effect for a period of four years. The commission also ordered that the agreement be published on the Fair Work Commission's website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established