Australian Workers' Union, v Boral Limited - [2022] FWC 181

[2022] FWC 181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.238— Application for a Scope order

Australian Workers’ Union,
v

Boral Limited

(B2021/1235)

DEPUTY PRESIDENT BULL

SYDNEY, 24 FEBRUARY 2022

Application for a scope order – whether group fairly chosen – whether scope order would promote fair and efficient bargaining, application opposed by employers –order not issued – application dismissed.

The Australian Workers Union (AWU) has filed an application with the Fair Work Commission (the Commission) pursuant to s.238 of the Fair Work Act 2009 (the FW Act) for a scope order for a proposed enterprise agreement.

[2] The AWU’s application (as a bargaining representative) names Boral Limited as the respondent to its application, however the evidence of Mr Angus Shedden Operations Manager NSW Metro Quarries employed by Boral Resources (NSW) Pty Ltd was that Boral Limited is a corporate entity and does not employ anyone capable of being covered by the AWU’s scope application.

While no application was made to amend the name of the respondent, it appears that the scope order is directed to Boral Resources (Country) Pty Limited and Boral Resources (NSW) Pty Ltd (Boral) as these two legal entities are party to the relevant existing enterprise agreement, the Boral NSW & ACT Country Quarry Operations Enterprise Agreement 2016 (the 2016 Agreement). This is supported in the AWU’s written reply submissions of 10 February 2022, which names in the proposed scope order sought, the two legal entities currently named as parties to the 2016 Agreement.[1]

During the arbitration of this matter, permission was granted (which was not opposed by the AWU) for Boral to be legally represented as per s.596(2)(a) of the FW Act.

The scope order application seeks to limit the scope of a proposed new enterprise agreement to Boral employees employed at the Peppertree Quarry located at Marulan South in NSW by excluding Boral employees at its other regional quarry sites in NSW and the ACT.

The parties are currently negotiating for a proposed agreement to replace the 2016 Agreement which commenced operation on 2 March 2017 and has a nominal expiry date of 1 March 2021 being four years from commencement.[2] The AWU was a bargaining representative for the 2016 Agreement and at clause 3 – Coverage, of the 2016 Agreement is stated to be as follows:

“3.1 This Agreement covers and applies to:

(a) Boral; and,
(b) the Employees; and
(c) the AWU.

3.2 To avoid doubt, this Agreement does not cover or apply to Boral employees who are not principally employed to work as quarry operators, plant operators or tradespersons (e.g. senior salaried employees such as Quarry Managers and Quarry Supervisors). Nothing in this Agreement prevents such employees referred to in this clause 3.2 from performing such duties and tasks as may be required to be performed at a Boral Quarry from time to time.”

The scope of the proposed agreement sought by the AWU would not cover employees who are employed at country quarries in NSW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 181
Decision Date

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for a scope order to limit the scope of a proposed enterprise agreement to employees of Boral Resources (NSW) Pty Ltd and Boral Resources (Country) Pty Ltd employed at the Peppertree Quarry in NSW. Boral opposed the application. The AWU argued that the Peppertree Quarry employees were organisationally, operationally and geographically distinct from the other Boral quarries, justifying a stand-alone agreement. Boral submitted that all the Boral quarries operated in the same or a similar manner and that the employees at the Peppertree Quarry carried out the same or similar work as other employees to be covered by the proposed replacement agreement. The Commission found that while the Peppertree Quarry employees were geographically distinct, they were not operationally or organisationally distinct. The Commission was also not satisfied that it was reasonable in all the circumstances to make the order sought. The application was dismissed.

Orders