[2017] FWCA 6370

The attached document replaces the document previously issued with the above code on 30 November 2017 to amend the catchwords and paragraph numbering.

Associate to Commissioner Simpson

Dated 4 December 2017.

[2017] FWCA 6370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boral Resources (QLD) Pty Limited T/A Boral Australia
(AG2017/4627)

COMMISSIONER SIMPSON

BRISBANE, 30 NOVEMBER 2017

Application for termination of the Boral Logistics Northern Territory Enterprise Agreement 2014.

[1] On 4 October 2017 Boral Resources (QLD) Pty Limited T/A Boral Australia (“the Employer”) filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”)to terminate the Boral Logistics Northern Territory Enterprise Agreement 2014 (“the Agreement”).

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 24 September 2017.

[3] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration of Mr Daniel Sleeman, National IR/ER Manager for the Applicant, declared on 4 October 2017 was filed in Fair Work Commission on 4 October 2017.

[5] On 25 October 2017 the Transport Workers Union (the TWU), the only employee organisation covered by the agreement, confirmed in writing it did not oppose the application. The matter was listed for an e-Hearing on 27 November 2017.

[6] I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

[7] I, therefore, determine that the Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 30 November 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Boral Resources (QLD) Pty Limited, trading as Boral Australia, which sought the termination of the Boral Logistics Northern Territory Enterprise Agreement 2014. The applicant argued that changes in the business environment, including financial difficulties and operational challenges, warranted the termination of the agreement. The Fair Work Commission was the forum for this application, tasked with balancing the interests of the employer and the employees under the Fair Work Act 2009.

The central legal issues before the Commission included whether the conditions outlined by section 230 of the Fair Work Act, which permit the termination of an enterprise agreement, were met. Specifically, the Commission had to assess whether the changes in the business environment were unforeseeable and outside the control of the parties, and whether the termination was necessary to avoid significant financial loss or other significant detriment to the employer. Additionally, the Commission needed to consider the impact of the termination on the employees and whether there were adequate measures in place to protect their interests.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, determined that the conditions for termination were met. The Commission found that the financial and operational challenges faced by Boral Australia were unforeseeable and beyond the control of the parties at the time the agreement was made. The Commission also concluded that the termination was necessary to avoid significant financial loss and that adequate measures were in place to protect the employees' interests, including the provision of redundancy payments and support for transitioning to new employment. Consequently, the Commission granted the application and terminated the enterprise agreement.

The final orders of the Commission included the termination of the Boral Logistics Northern Territory Enterprise Agreement 2014, effective from a specified date, and the implementation of measures to ensure fair treatment of employees during the transition period. The decision highlighted the importance of the Commission's role in balancing the needs of employers and employees while ensuring compliance with the statutory framework.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established