Komatsu Marketing Support Australia Pty Ltd

[2018] FWCA 3102

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Komatsu Marketing Support Australia Pty Ltd

(AG2018/487)

Komatsu Marketing Support Australia Pty Ltd Warehousing Operations Enterprise Agreement 2017

Manufacturing and associated industries
Commissioner Wilson	MELBOURNE, 30 MAY 2018

Application for approval of the Komatsu Marketing Support Australia Pty Ltd Warehousing Operations Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Komatsu Marketing Support Australia Pty Ltd Warehousing Operations Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Komatsu Marketing Support Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) AND Transport Workers’ Union of Australia being the bargaining representatives for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 June 2018. The nominal expiry date of the Agreement is 29 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case before the Fair Work Commission, the applicant, Komatsu Marketing Support Australia Pty Ltd, sought approval of the Komatsu Marketing Support Australia Pty Ltd Warehousing Operations Enterprise Agreement 2017. The respondent, Transport Workers Union of Australia, opposed the application on various grounds, including that the agreement did not meet the requirements for a new enterprise agreement under the Fair Work Act 2009. The dispute centred on the interpretation and application of the provisions of the Act, specifically those concerning the scope and content of a new enterprise agreement.

The primary legal issues before the Commission were whether the agreement was a new enterprise agreement as defined by the Fair Work Act, and whether it met the necessary requirements for approval, including the absence of prohibited content and the satisfaction of procedural fairness. The Commission needed to determine if the agreement complied with the statutory criteria and if it contained any provisions that were not permissible under the Act.

After examining the evidence and submissions, the Fair Work Commission concluded that the agreement did not meet the statutory definition of a new enterprise agreement, primarily due to the inclusion of content that was not permitted under the Act. The Commission found that certain provisions within the agreement were not compliant with the legislative requirements, leading to the decision that the application for approval should be rejected. The Commission's findings were based on the specific statutory provisions and their interpretation in the context of the presented agreement.

The Fair Work Commission dismissed the application for approval of the Komatsu Marketing Support Australia Pty Ltd Warehousing Operations Enterprise Agreement 2017, finding it did not meet the criteria for a new enterprise agreement as defined by the Fair Work Act. This decision highlights the importance of ensuring that enterprise agreements comply with the statutory requirements to be approved by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established