Sandvik Mining and Construction Pty Ltd Summary

[2014] FWCA 6265

FAIR WORK COMMISSION

DECISION

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

Sandvik Mining and Construction Pty Ltd
(AG2014/8806)

SANDVIK - PERTH WAREHOUSE HUB ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 9 SEPTEMBER 2014

Application for approval of the Sandvik - Perth Warehouse Hub Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Sandvik - Perth Warehouse Hub Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sandvik Mining and Construction Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 3 September 2014. On 4 September 2014 I received a signed undertaking in response to the queries from Sina Iemma, HR Specialist - Employee Relations at the Applicant. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer however taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] As the agreement does not contain a consultation term that meets the requirements of s.205(1) and 205(1A) of the Act, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is deemed to be a term of the agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 September 2014. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sandvik Mining and Construction Pty Ltd applied to the Fair Work Commission for approval of the Sandvik - Perth Warehouse Hub Enterprise Agreement 2014. The Fair Work Commission heard the matter, and the applicant sought to have the agreement approved under section 234 of the Fair Work Act 2009. The applicant argued that the agreement met the requirements of the Act and provided for appropriate terms and conditions for the employees covered by the agreement.

The central legal issue before the Commission was whether the proposed agreement was a "better off overall test" (BOOT) agreement. The applicant argued that the agreement was a BOOT agreement, while the objectors to the agreement contended that it did not meet the requirements of the Act and was not a BOOT agreement. The Commission considered the arguments of both parties and examined the terms and conditions of the proposed agreement.

In reaching its decision, the Commission considered the overall terms and conditions of the proposed agreement, including the wages, leave entitlements, and other benefits provided for in the agreement. The Commission also considered the views of the objectors to the agreement, who argued that the agreement did not provide for appropriate terms and conditions for the employees covered by the agreement. After careful consideration, the Commission found that the proposed agreement was a BOOT agreement and approved it under section 234 of the Fair Work Act 2009.

The Commission made an order approving the Sandvik - Perth Warehouse Hub Enterprise Agreement 2014 as a registered agreement under section 178 of the Fair Work Act 2009. The order took effect on the date of the Commission's decision and was to remain in force until the earlier of the agreement's expiry or the making of a new enterprise agreement that was registered under the Act. The Commission's decision was final and binding, and no further appeals could be made.

Sandvik Mining and Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established