Boral Cement Ltd

[2025] FWCA 950

[2025] FWCA 950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boral Cement Ltd

(AG2025/569)

BORAL CEMENT GEELONG PLANT CONTROLLERS ENTERPRISE AGREEMENT 2025

Cement and concrete products
COMMISSIONER FOX	MELBOURNE, 21 MARCH 2025

Application for approval of the Boral Cement Geelong Plant Controllers Enterprise Agreement 2025.

1. An application has been made for approval of an enterprise agreement known as the Boral Cement Geelong Plant Controllers Enterprise Agreement 2025 (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 Ltd (the Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

1. The Notice of Employee Representational Rights issued to employees on 10 March 2023 titled the Agreement as the ‘Boral Cement Geelong Plant Controllers’ Enterprise Agreement 2023’ (emphasis added) whilst the Agreement is titled ‘Boral Cement Geelong Plant Controllers Enterprise Agreement 2025’. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[3] that this constitutes a minor technical or procedural error for the purposes of s 188(5)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Personal/Carer’s Leave: Clause 26.2 of the Agreement provides that an employee must notify the employer of an absence on personal/carer’s leave as soon as practicable prior to the commencement of their shift. However, s.107 of the Act provides that notice must be given as soon as practicable (which may be a time after the leave has started).

• Withholding Monies at Termination: Clause 15.7 of the Agreement provides that if an employee fails to give the required notice, the employer may to the extent permitted by law withhold from any monies due to an employee on termination, an amount not exceeding the amount the Employee would have been paid in respect of a period of notice required by this clause, less any period of notice actually given by the Employee. This clause does not limit the source of monies which may be deducted and to permit the employer to withhold monies owing to the employee under the NES.

1. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Workers’ Union being a bargaining representative for the Agreement supports the approval of 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 28 March 2025. The nominal expiry date of the Agreement is 31 August 2027.

Section 218A Variation

1. The Employer submitted that the inclusion of clause 33 titled ‘Training for Union Delegates’ was a drafting error and does not reflect the intention of the parties, with the intention being that the workplace delegates’ rights term from the Cement, Lime and Quarrying Award 2020 will be incorporated into the Agreement, pursuant to clause 36 of the Agreement. Under s.218A of the Act, I sought to remove clause 33 from the Agreement as the inclusion of the clause was identified as a drafting error.

1. In correspondence to the parties, I advised the parties that I intended to amend the relevant clause pursuant to s.218A of the Act as I considered it to be an ‘obvious error’. Parties were given the opportunity to raise any objections to this course of action, and no objections were received by the Commission.

1. I am satisfied that the relevant error identified is an obvious error, and I am further satisfied that the amendment should be made pursuant to s.218A of the Act. Pursuant to the below order, the error is amended.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied to correct an obvious error as follows:

A.         By deleting clause 33 titled ‘Training for Union Delegates’ from the Agreement.

B.         The variation will operate from 28 March 2025.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

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