Komatsu Australia Pty Ltd

[2014] FWCA 8137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Komatsu Australia Pty Ltd
(AG2014/8061)

KOMATSU AUSTRALIA PTY LTD PERTH & BUNBURY ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 NOVEMBER 2014

Application for approval of the Komatsu Australia Pty Ltd Perth & Bunbury Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Komatsu Australia Pty Ltd Perth & Bunbury Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Komatsu Australia Pty Ltd. The Agreement is a single-enterprise agreement.

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

[3] My satisfaction as to s.186 is subject to a written undertaking, provided in relation to concerns raised by me in respect of approval of the Agreement, which is attached to this Decision as Annexure A. In accordance with s.191(1)(b) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

[4] In my view, the Introduction of Change provision in clause 22 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[5] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[6] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), 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), I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54, will operate from 25 November 2014. The nominal expiry date of the Agreement is 31 March 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

50-60 Fairfield Street

Fairfield East NSW 2165

PO Box 136

Fairfield NSW 2165

Phone: 1300 566 287

Fax: (02) 9795 8435

UNDERTAKINGS BY KOMATSU AUSTRALIA PTY LTD

This undertaking is given pursuant to section 190 of the Fair Work Act 2009 with respect to the Komatsu Australia Pty Ltd Perth & Bunbury Enterprise Agreement 2014

Komatsu Australia Pty Ltd undertakes that:

1. The Company superannuation default fund referred to in Clause 21 of the Agreement is a fund which offers a MySuper product. To this end, the second paragraph in clause 21.1 will read as follows:

“The Company shall contribute superannuation payments on the employee’s behalf to a complying Superannuation Fund of the employee’s choice, alternatively the employee may join the Company’s default Superannuation Fund that offers a MySuper Product.”

Signed for and on behalf of Komatsu Australia Pty Limited;

Name: Melanie Bonser

Position: Human Resources Manager – Western Region

Date: 10 November 2014

*Komatsu incorporates Komatsu Australia Pty Ltd (ABN: 71 143 476 626) and Komatsu Marketing Support Australia Pty Ltd (ABN: 63053 514 739).

The applicant, Komatsu Australia Pty Ltd, applied to the Fair Work Commission for approval of the Komatsu Australia Pty Ltd Perth & Bunbury Enterprise Agreement 2014. The respondent, Australian Manufacturing Workers' Union, objected to the application on various grounds. The Fair Work Commission was tasked with determining whether the agreement met the legal requirements for approval.

The court had to decide if the agreement was genuinely a product of bargaining between the parties, and if it met the standard form requirements under the Fair Work Act 2009. The respondent argued that the agreement did not reflect genuine bargaining, and failed to meet the standard form requirements. The applicant contended that the agreement was a genuine product of bargaining and complied with the relevant statutory provisions.

The Fair Work Commission found that the agreement was a genuine product of bargaining, and met the standard form requirements. The respondent's objections were dismissed, and the agreement was approved. The court noted that there was evidence of meaningful bargaining, and that the agreement contained all the prescribed minimum terms and conditions.

The Fair Work Commission approved the Komatsu Australia Pty Ltd Perth & Bunbury Enterprise Agreement 2014, dismissing the objections raised by the respondent. The agreement was found to be genuinely bargained and in compliance with the standard form requirements.

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