Boral Resources (VIC) Pty Limited t/a Boral Concrete

[2020] FWCA 4633

[2020] FWCA 4633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (VIC) Pty Limited t/a Boral Concrete
(AG2020/2218)

BORAL METRO LOGISTICS (VIC) DRIVERS’ ENTERPRISE AGREEMENT 2020

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 1 SEPTEMBER 2020

Application for approval of the Boral Metro Logistics (Vic) Drivers’ Enterprise Agreement 2020.

[1] Boral Concrete has applied for approval of a single enterprise agreement known as the Boral Metro Logistics (Vic) Drivers’ Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Boral Concrete sought to correct an error in the original application, by filing an amended Agreement signature page. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The Notice of Employee Representational Rights (Notice) reflects an enterprise agreement name which is different to the name of the Agreement as made. This does not of itself make the Notice invalid. 1 Even if that were not the case, having regard to the Applicant’s explanation for this difference (which the bargaining representatives did not oppose) and the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others,2 I consider that this would be an appropriate case to exercise the discretion at s.188(2) because it constitutes a minor procedural or technical error for the purposes of s.188(2)(a) and the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[5] I am satisfied that neither clause 1.4 nor any provision of the Agreement is intended to exclude the National Employment Standards in the Act (NES) and that the NES will prevail to the extent of an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the amended application and further information provided on request of the Commission, 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.

[7] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 1 September 2020 and, in accordance with s.54, will operate from 8 September 2020. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

 1   Falcon Mining Pty Ltd [2016] FWC 5315 at [133].

 2   [2019] FWCFB 318.

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