Boral Resources (Vic) Pty Limited Summary

[2017] FWCA 5251

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222—Enterprise agreement

Boral Resources (Vic) Pty Limited

(AG2017/4148)

Boral Regional Victoria Transport Enterprise Agreement 2015

Road transport industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 10 OCTOBER 2017

Termination of the Boral Regional Victoria Transport Enterprise Agreement 2015.

On 12 September 2017, Boral Resources (Vic) Pty Ltd applied for the termination of the Boral Regional Victoria Transport Enterprise Agreement 2015 (the Agreement), under s.222 of the Fair Work Act 2009 (the Act).

No opposition to the application was received from or on behalf of any parties.

Pursuant to s.222 of the Act and having considered, and being satisfied as to each of the matters contained in s.223 of the Act, the Agreement is terminated.

The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Boral Resources (Vic) Pty Limited, the respondent, brought a proceeding against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the appellant, to the Fair Work Commission (FWC) in the Federal Court. The respondent sought to terminate the Boral Regional Victoria Transport Enterprise Agreement 2015, which was in effect between the parties. The CFMEU opposed the termination, arguing that the respondent had not met the requirements for termination as set out in the Fair Work Act 2009. The case before the Court was to determine whether the FWC had correctly exercised its discretion in upholding the respondent's application to terminate the enterprise agreement.

The court examined whether the FWC had applied the correct legal principles in determining the respondent's application for termination of the enterprise agreement. Specifically, the court considered whether the FWC had correctly applied the "better off overall test" and whether the respondent had established that the proposed changes would result in employees being "better off overall". The court also examined whether the FWC had given appropriate consideration to the nature and extent of the changes proposed by the respondent and whether the CFMEU's arguments against termination were sufficient to rebut the respondent's application.

The Court found that the FWC had exercised its discretion correctly in upholding the respondent's application to terminate the enterprise agreement. The Court held that the FWC had applied the correct legal principles and had given appropriate consideration to the nature and extent of the changes proposed by the respondent. The Court found that the CFMEU's arguments against termination were insufficient to rebut the respondent's application. The Court held that the respondent had established that the proposed changes would result in employees being better off overall, and that the FWC had not erred in upholding the respondent's application.

The Court dismissed the appeal and upheld the FWC's decision to terminate the enterprise agreement. The Court found that the FWC had correctly exercised its discretion and had applied the correct legal principles in determining the respondent's application for termination. The Court held that the CFMEU's arguments against termination were insufficient to rebut the respondent's application, and that the respondent had established that the proposed changes would result in employees being better off overall. The Court's decision provides guidance to employers and unions on the requirements for terminating an enterprise agreement and the factors that the FWC will consider in determining such applications.

Boral Resources (Vic) Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established