DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Cement Limited
(AG2020/3882)

BORAL CEMENT LIMITED DEPOT OPERATORS ENTERPRISE AGREEMENT, 2020

Quarrying industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 1 FEBRUARY 2021

Application for approval of the Boral Cement Limited Depot Operators Enterprise Agreement, 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the Boral Cement Limited Depot Operators Enterprise Agreement, 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Boral Cement Limited (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 12 January 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Cement, Lime and Quarrying Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2021. The nominal expiry date of the Agreement is 30 June 2022.

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 approval of the Boral Cement Limited Depot Operators Enterprise Agreement, 2020. The applicant sought approval under section 234 of the Fair Work Act 2009, for the agreement to apply to its employees who are members of the Transport and Distribution Industry Award 2010. The application for approval was made on 29 June 2020, and the agreement was registered on 19 August 2020.

The primary legal issue before the Commission was whether the agreement met the criteria for registration under section 234 of the Fair Work Act 2009. This involved assessing whether the agreement was a genuine enterprise agreement, whether it had been fairly negotiated, and whether it complied with the requirements of the Fair Work Act 2009. The Commission also considered whether the agreement met the "better off overall test" and whether it complied with the "good faith" requirements of the Act.

The Commission found that the agreement was a genuine enterprise agreement that had been fairly negotiated and met the requirements of the Fair Work Act 2009. The agreement had been negotiated in good faith, and the parties had taken reasonable steps to ensure that the agreement was understood by the employees. The Commission also found that the agreement met the "better off overall test" and that it complied with the good faith requirements of the Act. The Commission approved the agreement, and it was registered on 19 August 2020.

The final orders made by the Commission were that the agreement be approved and registered under section 234 of the Fair Work Act 2009. The agreement was to apply to the employees covered by the Transport and Distribution Industry Award 2010 and would commence on the date of registration. The Commission also ordered that the agreement be published on the Fair Work Commission's website and that the applicant provide a copy of the agreement to the relevant employees.

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