Komatsu Australia Pty Ltd

[2021] FWCA 6991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Komatsu Australia Pty Ltd
(AG2021/8529)

KOMATSU AUSTRALIA PTY LTD KALGOORLIE SERVICE BRANCH ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 6 DECEMBER 2021

Application for approval of the Komatsu Australia Pty Ltd Kalgoorlie Service Branch Enterprise Agreement 2021.

[1] Komatsu Australia Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Komatsu Australia Pty Ltd Kalgoorlie Service Branch Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 November 2021.

[3] On 30 November 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• A Form F18 was requested from the AMWU if the organisation wished to be covered by the Agreement.

• Chambers sought additional materials regarding agreement pre-approval requirements, specifically the provision of the NERR and lodgement of emails sent to employees covered by the Agreement.

• Clause 11.2(e)(4) may provide for a deduction not permitted by s.324 of the Act and parties were notified that should the Agreement be approved, this clause could be unenforceable.

• Clauses 23.3 regarding compassionate leave, 12.5 regarding abandonment of employment, 13.4 & 13.7(e) regarding redundancy, 12.3(b) & 12.4(b) regarding deductions upon termination could be inconsistent with the National Employment Standards (NES).

• Chambers raised better off overall concerns regarding the minimum engagement of casual and part time employees covered by the Agreement.

[4] The Applicant has submitted an undertaking in the required form dated 1 December 2021. The undertaking deals with the following topics:

• The employer has inserted a National Employment Standards (NES) precedence clause.

• In respect of better off overall issued relating to part time employees, the employer has undertaken that a part time employee must be engaged for a minimum of 4 consecutive hours per day or shift. In order to meet their personal circumstances a part time employee may request and the Company may agree to an arrangement that provides for engagements of no less than 3 hours.

• In respect of better off overall issued relating to casual employees, the employer has undertaken that on each occasion a casual employee is required to attend for work the employee shall be engaged and paid for a minimum 4 hours work, provided that in order to meet their personal circumstances a casual employee may request and the Company may agree to an engagement of no less than 3 hours.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 13 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Komatsu Australia Pty Ltd, the applicant sought approval for the Kalgoorlie Service Branch Enterprise Agreement 2021. The dispute was brought before the Fair Work Commission, where the applicant argued that the proposed agreement contained necessary provisions to ensure fair and efficient operations at its Kalgoorlie service branch. The application was contested by the Australian Manufacturing Workers' Union, which raised objections on behalf of certain employees, arguing that the agreement failed to adequately protect their rights and interests.

The legal issues before the Commission centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved determining whether the agreement contained all the mandated provisions, whether it was free from prohibited content, and whether it had been genuinely negotiated between the employer and the relevant employee representatives. The Commission also considered whether the agreement would facilitate improved workplace relations and productivity, as well as whether it provided fair and reasonable terms and conditions for the employees.

The Fair Work Commission, after considering the submissions from both parties, found that the proposed agreement complied with the statutory requirements. The Commission noted that the agreement included all the mandated provisions and was free from prohibited content. It was determined that the agreement had been genuinely negotiated and would likely lead to improved workplace relations and productivity. The Commission also found that the agreement provided fair and reasonable terms and conditions for the employees, taking into account the specific circumstances of the Kalgoorlie service branch. Accordingly, the Commission approved the application for the agreement to be registered.

The Fair Work Commission's decision approved the Komatsu Australia Pty Ltd Kalgoorlie Service Branch Enterprise Agreement 2021, making it a legally binding agreement between the applicant and the employees covered by the agreement. The Commission's approval was based on the finding that the agreement met all the statutory requirements and provided fair and reasonable terms and conditions for the employees. The registration of the agreement allows for its enforcement by the parties and provides a framework for the operation of the Kalgoorlie service branch.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established