Boral Resources (Sa) Limited T/A Boral Construction Materials Summary

[2021] FWCA 6932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (Sa) Limited T/A Boral Construction Materials
(AG2021/8578)

BORAL SA QUARRY ENTERPRISE AGREEMENT 2021

Quarrying industry
COMMISSIONER CIRKOVIC	MELBOURNE, 1 DECEMBER 2021

Application for approval of the Boral SA Quarry Enterprise Agreement 2021.

[1] Boral Resources (Sa) Limited T/A Boral Construction Materials (the Applicant) has made an application for approval of an enterprise agreement known as the Boral SA Quarry Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 1 December 2021.

[3] Clauses 4.5.4 regarding public holidays and 7.3.5(b) regarding redundancy may be inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 1.5 of the Agreement is deemed to resolve these NES concerns.

[4] The Australian Workers’ Union (AWU), 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) of the Act I note that the Agreement covers this organisation.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case, the applicant, Boral Resources (SA) Limited, trading as Boral Construction Materials, sought approval for the Boral SA Quarry Enterprise Agreement 2021. This application was made under the Fair Work Act 2009. The respondents, which included various unions representing employees, opposed the approval of the agreement. The crux of the dispute centred on whether the proposed agreement met the legal standards for approval, specifically whether it provided adequate protections for employees and adhered to the principles of fairness and good faith as required by the Fair Work Act.

The central legal issue before the court was to determine if the enterprise agreement met the criteria for registration under section 233 of the Fair Work Act. The court had to assess whether the agreement provided for minimum terms and conditions that were at least equal to, or better than, the relevant industrial instrument. Additionally, the court had to consider whether the agreement was made in good faith and whether it adhered to the principles of procedural fairness and freedom of association. The unions argued that the agreement did not sufficiently protect employee rights and conditions, while Boral maintained that the agreement was fair and in the best interests of both parties.

In reaching its decision, the court meticulously examined the terms of the agreement and the submissions from both parties. The court found that the agreement contained provisions that were at least as favourable as the existing industrial award and adhered to the principles of good faith and procedural fairness. The court was satisfied that the agreement was made without coercion and allowed for genuine negotiation. Consequently, the court approved the agreement, recognising that it provided a fair and balanced outcome for both the employer and employees.

The final orders of the court were that the Boral SA Quarry Enterprise Agreement 2021 be approved and registered under section 233 of the Fair Work Act 2009. This decision ensures that the agreement will govern the employment conditions of the relevant employees, provided it is implemented in accordance with the terms set out in the agreement.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established