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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Boral Resources (VIC) Pty Limited t/a Boral Concrete for the approval of the Boral Metro Logistics (Vic) Drivers’ Enterprise Agreement 2020. The dispute arose under the Fair Work Act 2009, specifically in relation to the process for approving an enterprise agreement. The company sought to have the agreement recognised as a “single interest employer agreement,” which would exempt it from the usual requirements of achieving a majority of employee support. The application was contested by the Transport Workers Union, which argued that the agreement did not meet the necessary criteria for single interest employer status.

The central legal issue before the Commission was whether the enterprise agreement met the statutory requirements for approval as a single interest employer agreement. The Commission was required to determine if the agreement covered only employees who were employed in a single enterprise, and if it was made in good faith and with genuine consultation. Additionally, the Commission had to consider whether the agreement was in the best interests of the employees, and if it provided appropriate protections for those covered by it.

In delivering its decision, the Commission found that the enterprise agreement satisfied the necessary criteria for approval as a single interest employer agreement. The Commission determined that the agreement was limited to employees employed by Boral Concrete in Victoria, thus fulfilling the requirement of covering employees in a single enterprise. Furthermore, the Commission was satisfied that the agreement had been made in good faith and with genuine consultation. The Commission also concluded that the agreement was in the best interests of the employees, providing appropriate protections and benefits. As a result, the Commission approved the enterprise agreement under the Fair Work Act.

The Commission ordered that the Boral Metro Logistics (Vic) Drivers’ Enterprise Agreement 2020 be approved as a single interest employer agreement. This approval meant that the agreement was registered and legally binding without the need for a majority of employee support. The decision confirmed the company's right to implement the terms of the agreement, subject to the obligations and protections outlined within it.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established