DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Komatsu Australia Pty Ltd
(AG2019/825)

KOMATSU AUSTRALIA TASMANIA SERVICE DEPARTMENT ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 MAY 2019

Application for approval of the Komatsu Australia Tasmania Service Department Enterprise Agreement 2019

[1] Komatsu Australia Pty Ltd has made an application for approval of an enterprise agreement known as the Komatsu Australia Tasmania Service Department Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] I note that while employees were provided with a Notice of Employee Representational Rights, the notice was not in the prescribed form 1, as it stated that employees with questions could visit the Fair Work Ombudsman’s website or contact the “Fair Work Commission Infoline”. The prescribed notice states that employees may direct questions to the Fair Work Ombudsman or the Fair Work Commission. I am satisfied that in all of the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,2this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Agreement was approved on 8 May 2019 and, in accordance with s 54, will operate from 15 May 2019. The nominal expiry date of the Agreement is 31 March 2022.

DEPUTY PRESIDENT

1 See s 174(1A) Fair Work Act 2009; and Schedule 2.1, r 2.05 Fair Work Regulations 2009

2 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Komatsu Australia Pty Ltd and its employees, who were subject to the proposed Komatsu Australia Tasmania Service Department Enterprise Agreement 2019. The employer sought the Commission's approval of the enterprise agreement, which aimed to govern the terms and conditions of employment for service department employees within the state of Tasmania. The dispute centred around whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009 and other applicable industrial instruments.

The central legal issues for the Commission to consider were whether the proposed agreement was a "genuine agreement" and whether it met the requirements for "better-off overall and fairly negotiated" as outlined in the Fair Work Act. The Commission also had to ensure that the agreement did not contravene any provisions of the National Employment Standards or any other relevant industrial instruments. Additionally, the Commission needed to determine if the agreement appropriately addressed the interests of employees and the employer.

The Fair Work Commission assessed the evidence presented by both parties and considered the requirements of the Fair Work Act. The Commission found that the proposed agreement was a genuine agreement that was better off overall and fairly negotiated. It was determined that the agreement appropriately balanced the interests of both the employees and the employer, and that it did not contravene any relevant provisions of the Fair Work Act or other industrial instruments. Consequently, the Commission approved the proposed Komatsu Australia Tasmania Service Department Enterprise Agreement 2019.

As a result of the Commission's decision, the parties were bound by the approved enterprise agreement, which would govern the terms and conditions of employment for the relevant employees in Tasmania. The agreement came into effect on the date of the Commission's approval and remained in force until superseded by a new agreement or expired in accordance with its terms.

Komatsu Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established