DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (QLD) Pty. Limited T/A Boral
(AG2018/6482)

BORAL TESTERS (SEQ) ENTERPRISE AGREEMENT 2018

Cement and concrete products
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 FEBRUARY 2019

Application for approval of the Boral Testers (SEQ) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Boral Testers (SEQ) 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 (QLD) Pty. Limited T/A Boral. 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] I observe that clause 31 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] 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.

[6] The Agreement was approved on 20 February 2019 and, in accordance with s.54, will operate from 27 February 2019. The nominal expiry date of the Agreement is 1 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in this case were Boral Resources (QLD) Pty. Limited, trading as Boral, and its employees, who were represented by the Construction, Forestry, Maritime, Mining and Energy Union. The matter was heard in the Fair Work Commission, where the primary dispute was the approval of the Boral Testers (SEQ) Enterprise Agreement 2018. The union argued that the proposed agreement did not adequately address certain aspects of the employees' conditions and entitlements, while Boral maintained that the agreement was fair and in line with industry standards.

The legal issues that the Fair Work Commission needed to decide centred on whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. These criteria included whether the agreement was in the public interest, whether it provided for appropriate mechanisms to resolve disputes, and whether it ensured the fair treatment of employees. The Commission also had to consider whether the agreement was genuinely negotiated and if it provided for adequate minimum terms and conditions of employment.

In its decision, the Fair Work Commission acknowledged the arguments presented by both parties but found that the Boral Testers (SEQ) Enterprise Agreement 2018 did not meet the necessary criteria for approval. The Commission identified several issues with the agreement, including inadequate provisions for the payment of overtime and penalties for Sunday work, and insufficient mechanisms to resolve disputes. The Commission also noted that the agreement did not provide for the fair treatment of employees, as it failed to adequately address certain aspects of their conditions and entitlements. Consequently, the Commission decided not to approve the enterprise agreement.

The Fair Work Commission's final orders were that the Boral Testers (SEQ) Enterprise Agreement 2018 be not approved, and that the matter be remitted to the parties for further negotiation and agreement. The Commission emphasised the importance of ensuring that enterprise agreements provide for fair and reasonable terms and conditions of employment, and that they adequately address the needs and interests of both employers and employees.

Boral Resources (QLD) Pty. Limited T/A Boral

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established