Komatsu Marketing Support Australia Pty Ltd

[2021] FWCA 4037

[2021] FWCA 4037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Komatsu Marketing Support Australia Pty Ltd
(AG2021/5753)

KOMATSU MARKETING SUPPORT AUSTRALIA PTY LTD PERTH WAREHOUSING OPERATIONS ENTERPRISE AGREEMENT 2021

Storage services
DEPUTY PRESIDENT ASBURY	BRISBANE, 9 JULY 2021

Application for approval of the Komatsu Marketing Support Australia Pty Ltd Perth Warehousing Operations Enterprise Agreement 2021.

[1] Komatsu Marketing Support Australia Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Komatsu Marketing Support Australia Pty Ltd Perth Warehousing Operations Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 14.3(b) – Return of property;

•  Clause 14.4 – Recovery of overpayments on termination;

•  Clause 15.5 – Redundancy; and

•  Clause 17.1 – Public Holidays.

[5] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Transport Workers’ Union of Australia (the TWU) being a bargaining representative for the Agreement has given notice under s.183 of the Act that the Union wants to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers that organisation.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 16 July 2021. The nominal expiry date of the Agreement is 16 July 2024.

DEPUTY PRESIDENT

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Annexure A