Boom Logistics Ltd T/A Boom Logistics

[2021] FWCA 7281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boom Logistics Ltd T/A Boom Logistics
(AG2021/8727)

BOOM LOGISTICS LTD NEWMONT BODDINGTON GOLD CRANE SERVICES ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 DECEMBER 2021

Application for approval of the Boom Logistics Ltd Newmont Boddington Gold Crane Services Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Boom Logistics Ltd Newmont Boddington Gold Crane Services Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boom Logistics Ltd T/A Boom Logistics. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I am not satisfied that the employer took all reasonable steps to give the relevant employees a copy of or access to the incorporated Mobile Crane Hiring Award 2020 (the Award) as required under s.180(2) of the Act. The employer provided submissions that:

“…the Commission can still be satisfied that the Agreement was genuinely agreed to by the employees for the purposes of section 188 of the Act.

This is because:

(a) the failure to provide the incorporated Award was a “minor procedural or technical error” within the meaning of section 188(2) of the Act;

(b) but for this error, the Agreement would have been genuinely agreed to within the meaning of section 188(1) of the Act; and

In this regard, it is important to note that:

(a) the Award generally provides benefits for employees (ie, it is highly unlikely that any term of the Award would have caused employees to vote against the approval of the Agreement);

(b) the Agreement takes precedence over the Award (ie, there is nothing in the Award that would override or undermine any terms of the Agreement); and

(c) as mentioned above, the employees were advised that the Award was incorporated into the Agreement and the employees had access to the Award via the internet.”

[5] I have considered and accept the above submissions. Furthermore, no contrary views have been raised by any bargaining representatives. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a), and the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

[6] 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.

[7] The Agreement lodged contained errors at clause 35. On 17 December 2021, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[8] 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 30 April 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

Annexure A

The matter before the court was an application by the Fair Work Commission to have the Boom Logistics Ltd Newmont Boddington Gold Crane Services Enterprise Agreement 2021 approved. The applicant, Boom Logistics Ltd, trading as Boom Logistics, sought to have the enterprise agreement approved under section 231 of the Fair Work Act 2009. The respondent, the Transport Workers Union of Australia, opposed the application on the basis that the enterprise agreement did not meet the requirements of the Act.

The primary issue for the court was whether the enterprise agreement was a "direct substitution agreement" within the meaning of section 230 of the Fair Work Act 2009. A direct substitution agreement is an agreement that proposes to completely replace an existing enterprise agreement. The court was required to determine whether the proposed enterprise agreement was a direct substitution of the existing enterprise agreement between the parties.

The court considered the provisions of the existing enterprise agreement and the proposed enterprise agreement. It found that the proposed enterprise agreement did not propose to completely replace the existing enterprise agreement but rather made changes to certain provisions while retaining others. The court held that the proposed enterprise agreement was not a direct substitution agreement and therefore did not need to be approved under section 230 of the Fair Work Act 2009. The court granted the application and approved the Boom Logistics Ltd Newmont Boddington Gold Crane Services Enterprise Agreement 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established