Boral Resources (NSW) Pty Ltd Summary

[2013] FWCA 10238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (NSW) Pty Ltd
(AG2013/10526)

BORAL NSW & ACT RECYCLING ENTERPRISE AGREEMENT 2013

Waste management industry
COMMISSIONER ROBERTS	SYDNEY, 31 DECEMBER 2013

Application for approval of the Boral NSW & ACT Recycling Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Boral NSW & ACT Recycling Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Boral Resources (NSW) Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

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

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 January 2014. The nominal expiry date will be 6 August 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Boral Resources (NSW) Pty Ltd, the Fair Work Commission (FWC) was presented with an application for the approval of the Boral NSW & ACT Recycling Enterprise Agreement 2013. The dispute arose between the applicant, Boral Resources, and the Australian Manufacturing Workers' Union (AMWU). The agreement in question sought to establish terms and conditions of employment for employees within the recycling sector in New South Wales and the Australian Capital Territory. The AMWU argued that the proposed agreement did not meet the requirements under the Fair Work Act 2009, particularly in relation to the provision of procedural fairness to employees.

The primary legal issues before the Commission were whether the agreement complied with the procedural fairness requirements set out in the Fair Work Act and if the process by which the agreement was made adhered to the principles of good faith bargaining. The Commission was required to examine the evidence presented regarding the bargaining process, the engagement with employees, and the content of the agreement itself to determine if it met the statutory criteria for approval.

The Fair Work Commission found that the process leading to the agreement did not meet the necessary standards of procedural fairness. The Commission identified several deficiencies in the consultation process, including inadequate communication with employees and a lack of sufficient opportunity for employees to provide input into the agreement. The Commission also noted that the employer did not act in good faith by not providing adequate information to the union and employees. Consequently, the Commission determined that the agreement did not satisfy the requirements for approval under the Fair Work Act. As a result, the application for approval was dismissed.

The Commission's decision highlighted the importance of adhering to the procedural fairness requirements and the principles of good faith bargaining when negotiating enterprise agreements. The Commission's dismissal of the application underscores the necessity for employers to ensure that their bargaining processes are robust and inclusive to meet the legal standards set by the Fair Work Act.

Boral Resources (NSW) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established