Boral Cement Limited

[2022] FWCA 3822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boral Cement Limited

(AG2022/4375)

Boral Cement Limited Depot Operators Enterprise Agreement 2022

Cement and concrete products
COMMISSIONER JOHNS	MELBOURNE, 31 OCTOBER 2022

Application for approval of the Boral Cement Limited Depot Operators Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Boral Cement Limited Depot Operators Enterprise Agreement 2022 (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.

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.

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.

The Australian Workers’ 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 November 2022. The nominal expiry date of the Agreement is 30 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission received an application from Boral Cement Limited for the approval of the Boral Cement Limited Depot Operators Enterprise Agreement 2022. The agreement was to cover depot operators employed by Boral Cement Limited, and the dispute arose from disagreements between the employer and the union representing the employees on the terms of the proposed agreement. The Commission was tasked with determining whether the proposed agreement met the statutory requirements for approval.

The primary legal issue before the Commission was whether the proposed agreement contained the necessary provisions to ensure that it was in the best interests of the employees and complied with the relevant legislative framework. This involved assessing whether the agreement met the criteria set out in the Fair Work Act 2009, including whether it provided for fair and reasonable terms and conditions of employment, and whether it complied with the "better off overall test." The Commission also needed to consider whether the agreement was negotiated in good faith and whether it provided for appropriate dispute resolution mechanisms.

In making its decision, the Commission considered the submissions from both parties and the evidence presented. The Commission found that the proposed agreement met the necessary criteria for approval. It was satisfied that the agreement provided for fair and reasonable terms and conditions of employment and complied with the "better off overall test." The Commission also found that the agreement was negotiated in good faith and provided for appropriate dispute resolution mechanisms. The Commission was satisfied that the proposed agreement was in the best interests of the employees and complied with the relevant legislative framework.

The Commission approved the Boral Cement Limited Depot Operators Enterprise Agreement 2022, subject to certain conditions. These conditions included a requirement that the agreement be registered with the Fair Work Commission and that a copy of the agreement be provided to each employee covered by the agreement. The Commission also made an order that the agreement would commence on a specified date and that it would remain in force for a period of four years.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established