Becker Mining Australia Pty Ltd

[2024] FWCA 2056

[2024] FWCA 2056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Becker Mining Australia Pty Ltd

(AG2024/1279)

BECKER MINING AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2022

Electrical contracting industry
COMMISSIONER ALLISON	MELBOURNE, 5 JUNE 2024

Application for variation of the Becker Mining Australia Pty Ltd Enterprise Agreement 2022

1. An application has been made for approval of a variation to the Becker Mining Australia Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made by Becker Mining Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

1. The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

1. I observe the following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 44, relating to the definition of immediate family for the purposes of paid leave, may be more restrictive than the definition in the Act.

• Clause 42.1 (a) of the agreement provides that an employee is entitled to two days of paid family and domestic violence leave and three days of unpaid family and domestic violence leave in a 12-month period. This appears inconsistent with s.106A of the Act which provides that an employee is entitled to 10 days of paid family and domestic violence leave in a 12-month period.

1. However, noting clause 6.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

1. I note that the undertakings previously provided by the Applicant and accepted by the Commission when the Agreement was approved on 5 August 2022 are taken to form part of the Agreement as varied.

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

1. In accordance with s.216 of the Act, the variation operates from 5 June 2024.

COMMISSIONER

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