DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (Country) Pty Ltd
(AG2018/7186)

BORAL NSW & ACT COUNTRY BATCH PLANT OPERATORS ENTERPRISE AGREEMENT 2018

Cement and concrete products
COMMISSIONER CIRKOVIC	MELBOURNE, 16 MARCH 2019

Application for approval of the BORAL NSW & ACT Country Batch Plant Operators Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the BORAL NSW & ACT Country Batch Plant Operators Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Resources (Country) Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[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 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.

[5] The Agreement was approved on 16 March 2019 and, in accordance with s.54, will operate from 23 March 2019. The nominal expiry date of the Agreement is 8 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Boral Resources (Country) Pty Ltd, the Fair Work Commission was presented with an application for the approval of the Boral NSW & ACT Country Batch Plant Operators Enterprise Agreement 2018. The application was brought by the applicant company, seeking to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The dispute centred on the procedural fairness of the bargaining process, with the union arguing that the company had failed to bargain in good faith.

The legal issues before the Commission were whether the applicant company had genuinely attempted to negotiate the agreement and if the union's concerns regarding the bargaining process were valid. The union contended that the company had not engaged in meaningful negotiations and had imposed terms without due consideration of the union's submissions. The company, on the other hand, argued that it had conducted negotiations in good faith and that the union's objections were unfounded. The Commission had to determine whether the applicant company had met its obligations under the Act to bargain in good faith and whether the agreement could be approved despite the union's concerns.

The Commission found that the applicant company had not engaged in genuine negotiations with the union and had failed to provide adequate reasons for rejecting the union's proposals. The Commission noted that the company had presented a take-it-or-leave-it position and had not considered the union's submissions in good faith. As a result, the Commission determined that the agreement could not be approved. The Commission emphasised the importance of genuine bargaining and the need for employers to engage with unions in a meaningful manner. The application for approval of the enterprise agreement was dismissed.

The Commission ordered that the application for approval of the Boral NSW & ACT Country Batch Plant Operators Enterprise Agreement 2018 be dismissed. The company was directed to engage in further negotiations with the union to reach an agreement that reflects the principles of genuine bargaining. The decision underscores the significance of good faith bargaining and the role of the Commission in ensuring compliance with the requirements of the Fair Work Act 2009.

Boral Resources (Country) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established