Sandvik Mining and Construction Australia Pty Ltd

[2021] FWCA 7294

[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

<AE514452 PR737141>

Annexure A