DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Cement Limited
(AG2020/1323)

BORAL CEMENT LIMITED KOORAGANG EMPLOYEES ENTERPRISE AGREEMENT 2019

Cement and concrete products
COMMISSIONER JOHNS	SYDNEY, 22 MAY 2020

Application for approval of the Boral Cement Limited Kooragang Employees Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Boral Cement Limited Kooragang Employees Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Boral Cement Limited. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Workers’ Union (AWU) 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 AWU.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 May 2020. The nominal expiry date of the Agreement is 1 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boral Cement Limited sought approval of an enterprise agreement in the Fair Work Commission. The agreement, which applied to employees at the Kooragang Island facility, was the subject of a dispute between the applicant and a union representing the employees. The primary issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act 2009, particularly concerning the provision of minimum entitlements and the negotiation process. The union argued that certain provisions of the agreement were not fairly negotiated and failed to provide employees with their lawful minimum entitlements.

The Commission considered the nature and scope of the agreement and whether it was made in good faith and on a enterprise-wide basis. The applicant argued that the agreement was the product of extensive negotiations and represented the best possible outcome for both parties. The union contended that the agreement was deficient in several respects, including the failure to provide for adequate leave entitlements and the absence of a proper process for negotiating the agreement. The Commission examined the evidence presented by both parties and considered relevant case law and statutory provisions.

After careful consideration, the Commission determined that the agreement did not comply with the requirements of the Fair Work Act. The Commission found that certain provisions of the agreement were not the product of genuine negotiations and did not provide employees with their lawful minimum entitlements. The Commission also found that the process for negotiating the agreement was not in accordance with the requirements of the Act. As a result, the Commission refused to approve the agreement. The applicant was given an opportunity to remedy the defects in the agreement and reapply for approval.

The Commission's decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act. Employers and unions must ensure that agreements are genuinely negotiated and provide employees with their lawful minimum entitlements. The decision also underscores the need for a proper process for negotiating agreements and the importance of ensuring that agreements are approved by the Commission before they can be implemented.

Boral Cement Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established