Komatsu Australia Pty Ltd

[2021] FWCA 6991

[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

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