DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (SA) Limited T/A Boral Construction Materials
(AG2019/3858)

BORAL SA ASSET TEAM ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 25 OCTOBER 2019

Application for approval of the Boral SA Asset Team Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Boral SA Asset Team Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Boral Resources (SA) Limited T/A Boral Construction Materials. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 October 2019.

[3] On 18 October 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 24 October 2019. The undertaking deals with the following topics:

• Clause 7.2 of the Agreement, concerning abandonment of employment, is amended to provide for notice of termination, or payment in lieu of notice, in accordance with the National Employment Standards (NES).

• Clause 3.1(a) of the Agreement is amended to state that the rates of pay set out in Table 1 of that clause applying to Year 3 and Year 4 Apprentices will also apply to Adult Apprentices.

• Trades Assistants are to be paid at the following higher rates. $20.46 from the first pay period on or after 1 October 2019. $20.87 on or after 1 October 2020. $21.29 on or after 1 October 2021.

• Apprentices will not be rostered to work Night Shifts in the interests of their safety.

• Shift workers who work an afternoon or night shift that does not span at least five successive shifts must be paid 50% extra per shift for the first three hours and 100% extra for the remaining hours.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boral Resources (SA) Limited T/A Boral Construction Materials sought approval of the Boral SA Asset Team Enterprise Agreement 2019 from the Fair Work Commission. The agreement was proposed to cover employees in the Boral SA Asset Team, and the company argued it was fair and reasonable. The Australian Building Construction Employees and Builders Labourers Federation (SA Branch) opposed the application, contending that the agreement contained provisions that were not fair and reasonable. The dispute was heard in the Fair Work Commission, which was required to determine whether the proposed agreement met apostolic criteria.

The legal issues before the Commission included whether certain provisions in the agreement were fair and reasonable, and whether the agreement complied with relevant federal legislation. Key issues included the scope of the agreement, the terms of employment, and the provisions related to redundancy and termination. The Commission had to consider the submissions from both parties and assess whether the agreement was in accordance with the principles of the Fair Work Act 2009.

The Fair Work Commission found that while most of the provisions in the agreement were fair and reasonable, certain sections related to redundancy and termination did not meet the apostolic criteria. The Commission noted that the proposed redundancy provisions were not consistent with the provisions of the Fair Work Act 2009 and were therefore unfair. After considering the submissions and arguments from both parties, the Commission determined that the agreement could not be approved in its current form. The Commission ordered that the agreement be returned to the parties for amendment and resubmission, ensuring that the revised agreement complied with the apostolic criteria and the relevant federal legislation.

The Commission did not make any final orders in this instance, as it required the parties to amend the agreement and resubmit it for approval. The decision underscores the importance of ensuring that enterprise agreements meet the statutory requirements and are fair and reasonable for all parties involved.

Boral Resources (SA) Limited T/A Boral Construction Materials

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established