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

Printed by authority of the Commonwealth Government Printer

Komatsu Australia Pty Ltd applied to the Fair Work Commission for the approval of the Komatsu Australia Emerald Service Department Enterprise Agreement 2021. The applicant argued that the agreement complied with all necessary requirements for approval under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory criteria, including ensuring fair and reasonable terms for employees, and whether the process of developing the agreement was fair and transparent.

The Commission was required to consider whether the agreement provided for minimum rates of pay and conditions that met the safety net, if the agreement provided for a direct or indirect method of calculating ordinary hours of work, if the agreement was free from prohibited content, and if the agreement was made in good faith. The Commission also had to assess whether the agreement was made without coercion and whether the process of developing the agreement was fair and transparent.

In reaching its decision, the Commission considered the evidence provided by the parties and examined the terms of the agreement. The Commission found that the agreement met all the necessary requirements for approval, including ensuring fair and reasonable terms for employees. The Commission was satisfied that the agreement provided for minimum rates of pay and conditions that met the safety net, and that the agreement was free from prohibited content. The Commission also found that the agreement was made in good faith and without coercion, and that the process of developing the agreement was fair and transparent.

The Fair Work Commission approved the Komatsu Australia Emerald Service Department Enterprise Agreement 2021. The Commission determined that the agreement met all necessary requirements for approval under the Fair Work Act 2009. The approval of the agreement ensures that the employees of Komatsu Australia’s Emerald Service Department are provided with fair and reasonable terms and conditions of employment.

Komatsu Australia Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established