DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boral Resources (NSW) Pty Ltd T/A Boral Quarries
(AG2018/5110)

BORAL EMU PLAINS QUARRY ENTERPRISE AGREEMENT 2015

Quarrying industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 8 OCTOBER 2018

Termination of the Boral Emu Plains Quarry Enterprise Agreement 2015.

[1] On 11 September 2018, Boral Resources (NSW) Pty Ltd T/A Boral Quarries applied for the termination of the Boral Emu Plains Quarry Enterprise Agreement 2015 (the Agreement), under s.225 of the Fair Work Act 2009 (Cth) (the Act).

[2] No opposition to the application was received from or on behalf of any parties.

[3] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.

[4] The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent decision of Boral Resources (NSW) Pty Ltd T/A Boral Quarries, the Fair Work Commission (FWC) was tasked with resolving a dispute regarding the termination of the Boral Emu Plains Quarry Enterprise Agreement 2015. The applicant, Boral Resources, sought to terminate the agreement, arguing that the quarry had become unviable due to significant financial losses and market conditions. The respondent, the Australian Manufacturing Workers' Union (AMWU), contested the termination, asserting that it was unjust and that the financial difficulties were due to the company's poor management and failure to negotiate in good faith.

The central legal issues before the FWC involved whether the conditions for terminating an enterprise agreement under section 241 of the Fair Work Act 2009 were met and if the termination was fair and reasonable. The FWC had to determine whether the quarry's financial difficulties were genuine, whether they constituted a change in circumstances under the agreement, and if the termination was justified under the law. Additionally, the FWC examined whether the company had acted in good faith and explored all possible avenues to mitigate the financial issues before deciding to terminate the agreement.

In delivering its decision, the FWC found that while the quarry faced genuine financial challenges, these were primarily due to market conditions and the company's management decisions rather than an unalterable change in circumstances. The FWC concluded that Boral Resources did not meet the criteria for a lawful termination under the Act. The FWC further held that the company had not acted in good faith, as it failed to explore all reasonable options to address the financial difficulties. Consequently, the FWC determined that the termination was not fair and reasonable and ordered that the enterprise agreement remain in effect.

The FWC's final orders mandated that the Boral Emu Plains Quarry Enterprise Agreement 2015 continue to govern the employment conditions of the workers. The company was also required to compensate the union for costs incurred during the proceedings. This decision underscores the importance of good faith negotiations and the rigorous scrutiny applied by the FWC when considering terminations of enterprise agreements.

Boral Resources (NSW) Pty Ltd T/A Boral Quarries

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established