Boral Cement

[2013] FWCA 7323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Cement
(AG2013/2756)

BORAL CEMENT LIMITED WAURN PONDS AGREEMENT 2013

Cement and concrete products
COMMISSIONER BLAIR	MELBOURNE, 23 SEPTEMBER 2013

Application for approval of the Boral Cement Limited Waurn Ponds Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the Boral Cement Limited Waurn Ponds Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Cement.

[2] 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.

[3] The Australian Workers’ Union, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[6] The Australian Municipal, Administrative, Clerical and Services Union, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of an agreement between Boral Cement Limited and its employees, as represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute was heard in the Fair Work Commission, which is responsible for regulating workplace relations in Australia. The primary issue before the Commission was whether the proposed agreement, known as the Boral Cement Limited Waurn Ponds Agreement 2013, complied with the requirements of the Fair Work Act 2009.

The Commission had to determine if the agreement met the criteria for "genuine agreement" as outlined in the legislation. This involved assessing whether the agreement was made in good faith, without any form of coercion or undue influence. Furthermore, the Commission needed to ensure that the agreement did not undermine the rights and entitlements of employees as provided under the National Employment Standards or any other applicable awards and agreements. The Commission also considered whether the agreement provided for adequate mechanisms for dispute resolution and compliance.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement did not meet the criteria for genuine agreement. The decision was based on the evidence that suggested that the process leading to the agreement was not entirely free from undue influence. Additionally, the Commission identified that certain provisions in the agreement could potentially undermine the rights of employees under the National Employment Standards. Consequently, the Commission rejected the application for approval of the agreement.

The Fair Work Commission's decision highlights the importance of ensuring that any workplace agreements are genuinely negotiated and do not negatively impact the rights and entitlements of employees. The Commission's ruling serves as a reminder to all parties involved in such agreements to adhere to the legal requirements set out in the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established