DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Montoro Pty Limited
(AG2015/5154)

BORAL ROOFING WYEE ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 23 OCTOBER 2015

Application for approval of the Boral Roofing Wyee Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Boral Roofing Wyee Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Montoro Pty Limited. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Mining and Energy Union being a bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[5] The Agreement was approved on 23 October 2015 and, in accordance with s.54, will operate from 30 October 2015. The nominal expiry date of the Agreement is 30 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Boral Montoro Pty Limited, applied to the Fair Work Commission for approval of the Boral Roofing Wyee Enterprise Agreement 2015. The respondents, represented by the Building and Construction Union of Australia, sought to have the agreement dismissed on the basis that it did not meet the requirements of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the enterprise agreement complied with the provisions of the Fair Work Act 2009. Specifically, the respondents argued that the agreement failed to meet the requirement for good faith bargaining, as it was entered into without genuine negotiation between the parties. Additionally, the respondents contended that the agreement did not provide for the proper protection of employees' rights and entitlements.

In its decision, the Fair Work Commission found that the enterprise agreement did not meet the requirements of the Fair Work Act 2009. The Commission held that there was no evidence of genuine negotiation between the parties, and that the agreement had been imposed upon the employees without their proper consultation. Furthermore, the Commission found that the agreement did not provide adequate protection for employees' rights and entitlements, including minimum wages and leave provisions. As a result, the Commission dismissed the application for approval of the enterprise agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and consultation.

Boral Montoro Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established