Boral Resources (SA) Limited

[2017] FWCA 4390

[2017] FWCA 4390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Boral Resources (SA) Limited
(AG2017/3519)

BORAL SA CONCRETE ENTERPRISE AGREEMENT 2014

Cement and concrete products
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 23 AUGUST 2017

Application for variation of the Boral SA Concrete Enterprise Agreement 2014

[1] An application has been made under section 210 of the Fair Work Act 2009 (the FW Act) for approval of a variation to an enterprise agreement known as the Boral SA Concrete Enterprise Agreement 2014 (the Agreement). The agreement is a single enterprise agreement. The application has been made by the employer, Boral Resources (SA) Limited trading as Boral Construction Materials.

[2] The Agreement has operated since 10 March 2015. It has a nominal expiry date of 3 February 2018. It was approved by the Fair Work Commission (the Commission) on 3 March 2015. 1

[3] The Australian Workers’ Union (AWU) is a bargaining representative for the agreement and is covered by it.

[4] The application is accompanied by a statutory declaration by an officer or authorised employee of the Applicant and a statutory declaration by an officer or authorised employee of the AWU. Approval of the variation is sought by the Applicant and supported by the AWU.

[5] The variation to the Agreement concerns the following provisions:

Clause 3: Site Allowance (variation to clause 3.4(b))

Clause 8: Consultation and Dispute Resolution (variation to clauses 8.1.10 and 8.2.7).

[6] At the hearing of this matter the Applicant sought permission under section 596 of the FW Act to be represented by a lawyer. This was not opposed by the AWU. I have considered the submissions in support of legal representation. I accept that even with consent matters, the statutory requirements for approval of a variation to an enterprise agreement are technical and, in some instances, complex. I consider that permission under section 596 should be granted to the Applicant in the interests of the efficient conduct of proceedings. I grant permission.

[7] The application is within time. The variations were made on 2 August 2017. The application was lodged with the Commission within 14 days, on 11 August.

[8] The Applicant advances the application on the ground that the variations made bring the Agreement into compliance with the Code for the Tendering and Performance of Building Work 2016.

[9] I have considered the application and accompanying declarations in support of the application. I am satisfied that each of the requirements in sections 210 and 211 of the FW Act as relevant to this application for approval have been met. I consider that the varied dispute resolution clause continues to provide a term in the Agreement for the settling of disputes that is consistent with the provisions of section 186(6)(a) of the FW Act. Further, there are no serious public interest grounds for not approving the variation.

[10] The variation to the Agreement is approved and will operate from 12.01am 23 August 2017.

[11] A consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

 1   [2015] FWCA 1446 per Commissioner Roberts

Printed by authority of the Commonwealth Government Printer

<Price code A, AE412858  PR595556>