Boral Resources (Vic) Pty Ltd
[2025] FWCA 50
•7 JANUARY 2025
| [2025] FWCA 50 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Boral Resources (Vic) Pty Ltd
(AG2024/5048)
BORAL CONCRETE TESTERS ENTERPRISE AGREEMENT 2024
| Construction Materials Industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 7 JANUARY 2025 |
Application for approval of the Boral Concrete Testers Enterprise Agreement 2024
Introduction
Boral Resources (Vic) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Boral Concrete Testers Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Premixed Concrete Award 2020.
Model Consultation Terms
The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model consultation term can be found in Annexure 2 of the Agreement.
Apprentices
Clause 6.1.1(e)(ii) of the Agreement excludes apprentices from receiving notice of termination or payment in lieu of notice. However, s 123 of the Act does not preclude an apprentice from the entitlement to notice of termination provided by s 117 of the Act.
Further, the Agreement appears to reference Apprentices at clauses 6.1 and 6.2, in relation to termination and redundancy, however rates of pay have not been provided.
The Employer provided submissions that Apprentices are not covered by the Agreement and are not intended to be. The Employer has provided an undertaking to this effect.
Redundancy
Clause 6.2.1 of the Agreement provides that ‘a redundancy occurs where the Company no longer requires the Employee’s job (or the major or principal portion of it) to be performed by anyone’. This appears to be inconsistent with s. 119(1)(a) of the Act.
The Employer has provided an undertaking to address this issue.
Casual Minimum Engagement
The Agreement appears to be silent on the casual minimum engagement of 3 hours provided in clause 11.1(b) of the Award. Rates of pay may not be high enough to compensate where employees work short shifts.
The Employer has provided an undertaking to address this issue.
Section 190 Undertakings
The employer provided written undertakings. A copy of the undertakings is attached in Annexure 1. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
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), I note that the Agreement covers the AWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 January 2025. The nominal expiry date of the Agreement is 14 January 2028.
DEPUTY PRESIDENT
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