Applicant Boral Cement Limited

[2022] FWCA 3275 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Applicant Boral Cement Limited

(AG2022/3690)

Boral Cement Ltd (NSW) Enterprise Agreement 2022

Cement and concrete products
COMMISSIONER WILSON	MELBOURNE, 19 SEPTEMBER 2022

Application for approval of the Boral Cement Ltd (NSW) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Boral Cement Ltd (NSW) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Applicant Boral Cement Limited. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of 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 Australian Workers’ Union being a bargaining representative for the Agreement, 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 organisation.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, 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 organisation.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being a bargaining representative for the Agreement, 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 organisation.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) of Australia being a bargaining representative for the Agreement, 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 organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 September 2022. The nominal expiry date of the Agreement is 13 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Boral Cement Limited applied to the Fair Work Commission to have its 2022 Enterprise Agreement approved. The dispute involved the terms and conditions of employment for the employees of Boral Cement Limited. The application was made to the Fair Work Commission, Australia’s national workplace relations tribunal.

The legal issues before the Commission involved whether the terms and conditions of the Enterprise Agreement were fair and reasonable and whether they complied with the requirements of the Fair Work Act 2009. The Commission had to consider whether the agreement met the 'better off overall test', ensuring that the employees would be no worse off financially and, in some cases, better off overall. It also had to determine if the agreement contained the 'protected action provisions', which safeguard employees against adverse action for participating in protected industrial activities.

The Commission examined the terms of the agreement, including wages, hours of work, leave entitlements, and other conditions. It found that the agreement provided for fair and reasonable terms and conditions, met the better off overall test, and contained the necessary protected action provisions. The Commission approved the Enterprise Agreement, concluding that it was in the best interests of the employees and compliant with the requirements of the Act.

The Fair Work Commission approved the Boral Cement Ltd (NSW) Enterprise Agreement 2022, with the approval taking effect from the date of the decision. This decision will govern the employment terms and conditions of the employees of Boral Cement Limited in New South Wales.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established