Boral Resources (Qld) Pty Limited

[2019] FWCA 8113

[2019] FWCA 8113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Boral Resources (Qld) Pty Limited
(AG2019/3391)

Northern Territory
COMMISSIONER SIMPSON	BRISBANE, 2 DECEMBER 2019

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

[1] On 10 September 2019, Boral Resources (QLD) Pty Limited (the Applicant) filed an application in the Fair Work Commission (Commission) under s.225 of the Fair Work Act 2009 (the Act) to terminate the Boral Logistics Northern Territory Enterprise Agreement 2014 (the Agreement) after its nominal expiry date.

[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;

(c) an employee organisation 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 Phillip Harris, General Manager for Quarries and Logistics for Boral Resources (QLD) Pty Limited was declared and filed in the Commission on 10 September 2019. The Commission is advised that the Applicant does not have any employees covered by the Agreement and further, that termination of the Agreement will have no consequential effect on the Applicant’s employees for that reason.

[5] My Associate sent an email to the Transport Workers’ Union (TWU) who is the employee organisation covered by the Agreement, seeking their views on the termination application.

[6] The TWU did not provide a response and no objection to the application has been received to date.

[7] On the basis of the material before me, 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 employee and employer.

[8] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 2 December 2019.

COMMISSIONER

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