Boral Resources (Country) Pty Limited

[2017] FWCA 4294

[2017] FWCA 4294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Boral Resources (Country) Pty Limited
(AG2017/3493)

BORAL NSW AND ACT COUNTRY DRIVERS ENTERPRISE AGREEMENT 2014

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 20 OCTOBER 2017

Application for variation of the Boral NSW and ACT Country Drivers Enterprise Agreement 2014.

[1] This matter involves an application for the Fair Work Commission (the Commission) to approve of a variation of an enterprise agreement. The application has been made pursuant to s. 210 of the Fair Work Act 2009 (the Act). The application was made by Boral Resources (Country) Pty Limited (the employer).

[2] The application seeks approval of a variation to the Boral NSW and ACT Country Drivers Enterprise Agreement 2014 (the Agreement).

[3] The application was lodged at Sydney on 10 August 2017. The application included a statutory declaration of Robert Giddings dated 9 August 2017 (the declaration) made on behalf of the employer. The declaration stated that the variation to the Agreement was made on 28 July 2017.

[4] Therefore the application was made within the 14 day time limit set by subsection 210 (3) (a) of the Act. Rule 25 (1) of the Fair Work Rules 2013 sets out the requirements for an application under this section of the Act, and is in the following terms:

25  Application for approval of variation of an enterprise agreement

(1) An application under section 210 of the Act for approval of a variation of an enterprise agreement must be accompanied by:

(a) a statutory declaration in support of the application by an officer or authorised employee of each employer covered by the agreement; and

(b) a statutory declaration in relation to the application by an officer or authorised employee of each employee organisation that is a bargaining representative for the variation agreement.

Note:  The statutory declarations must be in the approved form—see subrule 8(2).

[5] The application when filed for processing in the Commission was not accompanied by the required Form F23B – Statutory declaration of employee organisation in relation to variation of an enterprise agreement. A request was made by the Commission on Monday, 4 September 2017 for a completed Form F23B to be provided by the Transport Workers’ Union of Australia (TWU) and a signed copy of the Agreement. On Friday, 8 September 2017 the Commission was informed by the employer that the TWU had been provided with relevant documentation filed in the Commission and for their review, and also provided a copy of the Enterprise Agreement signed by the employer and an employee representative.

[6] On Tuesday, 19 September 2017, the Commission received an email from the employer enquiring about the status of the application. A response was sent that same day informing the employer that the Form F23B remained outstanding and the latest copy of the Agreement provided was not signed by the TWU, and these two items were delaying the further processing of the application.

[7] On Thursday, 12 October 2017 the employer submitted by email that Regulation 2.09A (2) of the Fair Work Regulations 2009 does not require a Union, even as a Party to the original enterprise agreement, to sign a variation document and there is no formal requirement for a signed copy of the Agreement to be filed.

[8] Further, the employer advised that despite repeated requests, the TWU had not signed a copy of the Agreement or variation document, or provided a completed Form F23B. The employer submitted that in the absence of “a statutory declaration in relation to the application by an officer or authorised employee of each employee organisation that is a bargaining representative for the variation agreement”, the Commission should exercise its discretion under Rule 6 (1) to waive the ordinary regulatory compliance and approve the variation application.

[9] The application seeks approval for a variation to Clauses 24.7 and 24.8 the Agreement, which primarily involves re-drafting Clause 24.7 to require that any arbitrated decision or other binding outcome to a dispute under this clause be consistent with the Code for the Tendering and Performance of Building Work 2016, and the removal of Clause 24.8.

[10] In view of the particular circumstances in this case, including the nature of the variations to the Agreement which have been made, I have decided to exercise the discretion provided by Rule 6 (1) and dispense with full compliance with Rule 25.

[11] The application for approval of a variation was listed for Hearing in Chambers before the Commission on 20 October 2017.

[12] I have considered the application for approval of a variation having regard for the material filed in support of the application, and given the particular circumstances, whereby I have waived the ordinary regulatory compliance. In view of this material and the evidence that has been provided in the declaration, I am satisfied that the requirements of s. 211 of the Act have been met.

[13] Consequently the variation of the Agreement is approved. In accordance with s. 216 of the Act the variation to the Agreement will come into operation on and from 20 October 2017.

COMMISSIONER

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