Komatsu Australia Pty Ltd

[2025] FWCA 860

[2025] FWCA 860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Komatsu Australia Pty Ltd

(AG2025/514)

KOMATSU AUSTRALIA WESTERN REGION SERVICE BRANCH ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER SLOAN	SYDNEY, 7 MARCH 2025

Application for approval of the Komatsu Australia Western Region Service Branch Enterprise Agreement 2025

1. Komatsu Australia Pty Ltd has applied for approval of an enterprise agreement known as the Komatsu Australia Western Region Service Branch Enterprise Agreement 2025 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.

2. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union (“AMWU”) was a bargaining representative for the Agreement. It supports the approval of the Agreement.

3. Two provisions of the Agreement require comment. First, clause 12.3(b) provides that if an employee fails to provide the necessary notice of termination, or to work out their notice period, Komatsu “may deduct from any monies owing [to the employee] an amount equivalent to the required period of notice not provided or worked”. There is no limitation on the source of any deduction. On its face, the clause appears to allow Komatsu to withhold monies owing to an employee on termination under the National Employment Standards, such as accrued but unused annual leave or long service leave.

1. Second, clause 13 deals with redundancy. Clause 13.4 provides that where Komatsu obtains acceptable alternative employment for an employee, which the employee accepts, “the redundancy and redundancy pay provisions of this clause do not apply”. While clause 13 might be said not to apply in the circumstances described, the provision would not exempt Komatsu from paying redundancy pay under s 119 of the Act in the absence of a determination from the Commission under s 120.

1. These things said, clause 4(d) of the Agreement incorporates the NES into the Agreement, and provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will apply to the extent of the inconsistency. This should ensure that clauses 12.3(b) and 13.4 are not applied in a manner contrary to the NES. In raising the issues, it is my intention to ensure that this is the case.

2. Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application have been met.

3. The AMWU has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the AMWU.

4. The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 14 March 2025. The nominal expiry date of the Agreement is 14 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE528297  PR785063>