Komatsu Australia Pty Ltd

[2021] FWCA 4671

[2021] FWCA 4671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Komatsu Australia Pty Ltd
(AG2021/6268)

KOMATSU AUSTRALIA EMERALD SERVICE DEPARTMENT ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 3 AUGUST 2021

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

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

[2] The matter was allocated to my Chambers on 23 July 2021.

[3] On 28 July 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 2 August 2021. The undertaking deals with the following topics:

•  The company will not have the discretion to alter the ordinary hours of continuous shift workers.

•  Despite clause 6.1.2, the definition of shift worker, including for the purpose of the National Employment Standards (NES), will be a worker who is regularly rostered to work on Sundays and public holidays.

•  A shift worker will be entitled to an additional week of annual leave.

•  Despite clause 6.6.1, an employee who has been requested to work on a public holiday may reasonably refuse.

•  Employees who work afternoon or night shifts for less than 5 successive working days will be paid time and a half for each shift.

•  An Individual Flexibility Arrangement may be terminated by either employee or employer by giving written notice of not more than 28 days, or at any time if agreed.

[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 that responded supported 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[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 30 September 2023.

COMMISSIONER

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