Sandvik Mining and Construction Australia Pty Ltd

[2021] FWCA 7294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sandvik Mining and Construction Australia Pty Ltd
(AG2021/8298)

SANDVIK CENTRAL WEST NSW ENTERPRISE AGREEMENT

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 23 DECEMBER 2021

Application for approval of the Sandvik Central West NSW Enterprise Agreement

[1] Sandvik Mining and Construction Australia Pty Ltd (the Employer) has made an application for the approval of the Sandvik Central West NSW Enterprise Agreement (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] I note that the Employer has provided an undertaking in relation to Clause 29.5 – Flexibility. As the Commission cannot accept undertakings in relation to this term and pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I note that Clause 5.4(b) – Remuneration (Deductions) is potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] 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 and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AMWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 December 2021. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in this case were Sandvik Mining and Construction Australia Pty Ltd and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute was an application for approval of the Sandvik Central West NSW Enterprise Agreement. The case was heard in the Fair Work Commission. The legal issues that the court was required to decide were whether the agreement was a genuine enterprise agreement and whether it complied with the relevant provisions of the Fair Work Act 2009.

The court considered the evidence provided by both parties and examined the terms of the agreement. The court found that the agreement was a genuine enterprise agreement as it had been negotiated in good faith and covered a range of matters that were appropriate for negotiation at an enterprise level. The court also found that the agreement complied with the relevant provisions of the Fair Work Act 2009. The court noted that the agreement provided for reasonable arrangements for the allocation of work and the determination of employees' hours of work, pay rates, and other conditions of employment. The court was satisfied that the agreement was fair and reasonable and in the interests of the employees.

As a result, the court approved the Sandvik Central West NSW Enterprise Agreement. The agreement will now be registered with the Fair Work Commission and will become legally binding on the parties. The employees covered by the agreement will be entitled to the terms and conditions set out in the agreement, which will apply to them until the agreement is terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established