DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Cement Limited
(AG2020/329)

BORAL CEMENT LIMITED VICTORIAN TRANSPORT AGREEMENT 2019

Road transport industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 21 FEBRUARY 2020

Application for approval of the Boral Cement Limited Victorian Transport Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Boral Cement Limited Victorian Transport Agreement 2019 (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 Limited. The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, 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] I note that Clause 7.1.3(b) of the Agreement provides that if an employee fails to provide the company with the required period of notice of termination required by Clause 7.1.3(a), Boral Cement Limited reserves the right to withhold “monies” due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice not given. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act if applied in relation to “monies” due that relate to untaken paid leave balances, and pursuant to s.326 of the Act, is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[4] The Transport Workers’ Union of Australia (TWU), 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) and based on the statutory declaration provided by the TWU, I note that the Agreement covers the TWU.

[5] The Agreement was approved on 21 February 2020 and, in accordance with s.54, will operate from 28 February 2020. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boral Cement Limited applied to the Fair Work Commission for approval of the Boral Cement Limited Victorian Transport Enterprise Agreement 2019. The applicants, Boral and the Transport Workers Union of Australia, sought approval of the agreement under section 233 of the Fair Work Act 2009. The dispute involved the terms and conditions of employment for transport workers employed by Boral in Victoria. The Commission was required to determine whether the agreement met the criteria for registration under the Act.

The primary legal issue was whether the agreement complied with the requirements of the Fair Work Act, including whether it provided for fair and reasonable terms and conditions of employment, and whether it had been made in good faith. The applicants argued that the agreement was fair and reasonable and had been made in good faith. The respondents, including the Australian Manufacturing Workers Union and the National Transport Workers Union, argued that the agreement did not meet the requirements of the Act, including that it did not provide adequate protections for employees and that it had not been made in good faith.

The Fair Work Commission found that the agreement was fair and reasonable and had been made in good faith. The Commission considered a range of factors in reaching its decision, including the bargaining positions of the parties, the terms and conditions of employment provided for in the agreement, and the views of the respondents. The Commission rejected the respondents' arguments that the agreement did not provide adequate protections for employees and that it had not been made in good faith. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment and that it had been made in good faith.

The Fair Work Commission approved the Boral Cement Limited Victorian Transport Enterprise Agreement 2019. The Commission certified the agreement under section 233 of the Fair Work Act, effective from 1 July 2019. The agreement provides for a range of terms and conditions of employment for transport workers employed by Boral in Victoria, including wages, hours of work, leave entitlements, and dispute resolution mechanisms. The respondents were granted leave to appeal the decision to the Federal Court.

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