Komatsu Australia Pty Ltd T/A Komatsu Australia Pty Ltd

[2024] FWCA 3024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Komatsu Australia Pty Ltd T/A Komatsu Australia Pty Ltd

(AG2024/2846)

KOMATSU AUSTRALIA MACKAY AND EMERALD ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER DURHAM	BRISBANE, 19 AUGUST 2024

Application for approval of the Komatsu Australia Mackay and Emerald Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Komatsu Australia Mackay and Emerald Enterprise Agreement 2024 (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 T/A Komatsu Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

I note the undertakings were provided in relation to the following:

Compassionate leave – clause 6.3.
Deductions – clause 3.5(b)(iii).

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

Compassionate leave – clause 6.3.
Deductions – clause 3.5(b)(iii).

However, noting the undertakings provided and clause 1.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) lodged respective Form F18 statutory declarations giving notice under s.183 of the Act that each wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU and ETU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application for approval of the Komatsu Australia Mackay and Emerald Enterprise Agreement 2024 was before the Fair Work Commission. The applicant, Komatsu Australia, sought to have the agreement approved under the Fair Work Act 2009. The dispute centred around the terms and conditions of employment for the employees covered by the proposed enterprise agreement.

The court was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act. This included assessing whether the agreement provided for a direct or indirect safety net, whether it contained only permissible matters, and whether it complied with the procedural fairness requirements. Specifically, the court needed to determine if the agreement provided for a safety net that was at least equal to the national safety net, and whether the agreement was made in good faith and without coercion.

The Fair Work Commission found that the agreement provided for a direct safety net that was at least equal to the national safety net. The court considered the terms and conditions of the agreement, including the pay rates, leave entitlements, and other benefits provided. The Commission found that the agreement contained only permissible matters and complied with the procedural fairness requirements. The Commission was satisfied that the agreement was made in good faith and without coercion, based on the evidence provided by the applicant.

The Fair Work Commission approved the Komatsu Australia Mackay and Emerald Enterprise Agreement 2024, subject to certain conditions. The Commission made an order that the agreement be registered and published on the Fair Work Commission's website. The applicant was required to provide a copy of the agreement to each employee covered by the agreement within 14 days of the approval order. The agreement came into effect on the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established