Boral Cement Limited

[2023] FWCA 197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boral Cement Limited

(AG2022/5357)

BORAL CEMENT LIMITED KOORAGANG EMPLOYEES ENTERPRISE AGREEMENT 2022

Cement and concrete products
DEPUTY PRESIDENT EASTON	SYDNEY, 19 JANUARY 2023

Application for approval of the Boral Cement Limited Kooragang Employees Enterprise Agreement 2022.

Boral Cement Limited (the Employer) has made an application for the approval of the Boral Cement Limited Kooragang Employees Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

The Australian Workers’ Union (AWU) was a bargaining representative for the Agreement and 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 January 2023. The nominal expiry date of the Agreement is 1 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Boral Cement Limited applied for the approval of the Kooragang Employees Enterprise Agreement 2022. The agreement sought to establish the terms and conditions of employment for employees of Boral Cement at the Kooragang Island facility. The dispute centred on the terms of the proposed agreement and whether they complied with relevant legislative provisions under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act, including whether it was made in good faith, free from coercion, and met the provisions for employee representation. The Commission also examined whether the agreement contained all the mandatory terms prescribed by the Fair Work Act and if it provided a safety net for employees.

The Commission found that the application for approval was made in good faith and that the agreement had been negotiated without any evidence of coercion. It was also determined that the agreement included all mandatory terms as required by the Fair Work Act. The Commission noted that while some employees had expressed concerns about certain aspects of the agreement, there was sufficient representation in the negotiation process to satisfy the requirements of the Act. Consequently, the Fair Work Commission approved the Kooragang Employees Enterprise Agreement 2022.

In light of this approval, the Commission ordered that the agreement be registered and become legally binding from the effective date specified within the document. The decision ensures that the terms and conditions outlined in the agreement are enforceable and that employees at the Kooragang Island facility are governed by the new enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established