Boral Resources (NSW) Pty Ltd T/A Boral, Boral Resources (Country) Pty. Limited T/A Boral

[2024] FWCA 510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Boral Resources (NSW) Pty Ltd T/A Boral, Boral Resources (Country) Pty. Limited T/A Boral

(AG2024/112)

BORAL NSW & ACT COUNTRY QUARRY OPERATORS ENTERPRISE AGREEMENT 2023

Quarrying industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 5 FEBRUARY 2024

Application for variation of the Boral NSW & ACT Country Quarry Operators Enterprise Agreement 2023

An application has been made for the variation of the Boral NSW & ACT Country Quarry Operators Enterprise Agreement 2023 (the Agreement). The Application was made by Boral Resources (NSW) Pty Ltd T/A Boral, Boral Resources (Country) Pty. Limited t/a Boral (the Applicants). The Applicants requested the Commission to exercise its powers under s.218A of the Fair Work Act 2009 (Cth)(the Act) to vary the Agreement to correct or amend an obvious error in clause 28 of the Agreement and to validate the relevant approval decision pursuant to s.602A of the Act.

The application sought a variation in Clause 28 (Minimum Wage Rates) of the Agreement which contains a table showing the minimum weekly wage rates for full-time employees. The pay rates set out in the table are to be increased by 3.5% on 1 October each year from 2023 to 2026, however owing to a typographical error, the last wage rate increase is stated to occur ‘…. on or after 1 October 2025,’ instead of ‘…. on or after 1 October 2026.’ The application sought to vary the Agreement to state that the last wage rate increase will take effect ‘…. on or after 1 October 2026.’

It was put that the text sought to be removed from the Agreement and replaced by the variation was obvious error. The correction or amendment was sought to ensure the Agreement accurately reflects the terms negotiated during bargaining and to otherwise remove any confusion owing to the error.

The views of the Australian Workers’ Union (AWU) were sought in relation to the proposed amendments. The AWU was a bargaining representative for the Agreement. The AWU had no objection to the proposed amendment. I note the correction is consistent with an in-principle agreement reached between the AWU and Boral Resources (Country) Pty Ltd during the course of a conference before the Commission in a matter under s.240 of the Act. The corrected text is embodied in a recommendation of Commissioner McKinnon dated 23 October 2023 in that matter.

I am satisfied that the proposed variation deals with obvious an error in the Agreement. The making of the variation will remove that obvious error.

It is appropriate in the circumstances to approve the variation. The variation will operate on and from 10 January 2024 being the date of the approval of the Agreement. Having approved the variation pursuant to s.218A and given the variation an operative date of 10 January 2024, it is unnecessary to deal with the matter under s.602A of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the court involved Boral Resources (NSW) Pty Ltd, trading as Boral, and Boral Resources (Country) Pty Limited, also trading as Boral. The dispute was about the variation of the Boral NSW & ACT Country Quarry Operators Enterprise Agreement 2023. The application for this variation was lodged in the Fair Work Commission, the tribunal responsible for handling such industrial disputes in Australia.

The primary legal issues the court had to address were whether the proposed variation met the requirements set out in the Fair Work Act 2009 and whether the process for the variation was conducted fairly and in compliance with the relevant laws. Specifically, the court needed to determine if the variation was necessary to address an industrial issue and if it was in the best interest of the employees.

The court examined the evidence provided by both parties and considered the nature of the industrial issue at hand. It found that the proposed variation was necessary to address the specific industrial issue and that it would benefit the employees. The court also found that the process for the variation was conducted fairly and in accordance with the law. Consequently, the court granted the application for the variation of the enterprise agreement.

The Fair Work Commission ordered that the Boral NSW & ACT Country Quarry Operators Enterprise Agreement 2023 be varied as per the application. The new terms and conditions of the agreement, as outlined in the application, came into effect from the date specified in the order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established