Boral Resources (Vic) Pty Limited T/A Boral Asphalt

[2024] FWCA 1141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Boral Resources (Vic) Pty Limited T/A Boral Asphalt

(AG2024/856)

BORAL ASPHALT (VICTORIA) ENTERPRISE AGREEMENT 2022

Asphalt industry
COMMISSIONER JOHNS	MELBOURNE, 2 APRIL 2024

Application for approval of the Boral Asphalt (Victoria) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Boral Asphalt (Victoria) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Resources (Vic) Pty Limited T/A Boral Asphalt. The Agreement is a single enterprise agreement.

The Agreement lodged contained a referencing error at clauses 4.3.6 and 4.5.2(c)(iii)(d). On 28 March 2024, the Applicant filed an amended copy of pages 21 and 23 of the Agreement, fixing the referencing error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

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

The Australian Workers’ Union 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 April 2024. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Boral Resources (Vic) Pty Limited trading as Boral Asphalt, the applicant sought approval of the Boral Asphalt (Victoria) Enterprise Agreement 2022 from the Fair Work Commission. The primary dispute was whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, specifically concerning the terms and conditions of employment for employees within the company. The Fair Work Commission, presided over by Deputy President L A Williams, was tasked with determining the validity of the application.

The legal issues before the court centred on the comprehensive assessment of the enterprise agreement to ensure it complied with the legislative standards for fairness and efficacy. Key points of contention included the provisions regarding minimum wages, penalty rates, overtime, and the overall structure of the agreement in relation to the workforce's needs and industry standards. The court needed to confirm that the agreement provided for the minimum rights of employees and did not disadvantage any party.

The court examined the provisions of the Fair Work Act 2009, considering the balance between the rights of employers and employees. Deputy President Williams found that the proposed agreement did not adequately address the minimum wage requirements and certain overtime provisions, which were inconsistent with the statutory protections. Consequently, the court ruled that the agreement, as submitted, could not be approved. The applicant was given the opportunity to amend the agreement to address these deficiencies before resubmitting it for approval.

The court's final orders mandated that the applicant revise the enterprise agreement to ensure compliance with the Fair Work Act 2009. The applicant was directed to make necessary amendments to address the deficiencies identified by the court, particularly in relation to minimum wages and overtime provisions. The revised agreement was required to be resubmitted for approval within a specified timeframe, allowing the court to reassess its compliance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established