Boral Resources (Vic) Pty Ltd

[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

Printed by authority of the Commonwealth Government Printer

Boral Resources (Vic) Pty Ltd sought approval of the Boral Concrete Testers Enterprise Agreement 2024, which was opposed by the Australian Building and Construction Industry Employees and Builders Labourers Federation. The dispute was heard by the Fair Work Commission (FWC), which had to determine whether the agreement met the requirements of the Fair Work Act 2009. The FWC's role was to ensure that the agreement was appropriate and fair, taking into account various factors such as the bargaining power of the parties, the nature of the industry, and the broader economic context.

The central issue before the FWC was whether the agreement met the "better off overall test" as outlined in the Fair Work Act. This test requires that employees be no worse off financially and at least as well off overall, considering all benefits and detriments. The FWC had to consider whether the proposed agreement provided fair and reasonable terms for the employees, taking into account the balance of rights and obligations, the nature of the industry, and the economic environment. Additionally, the FWC needed to assess whether the agreement was appropriately certified, ensuring it was free from any unfair provisions and that the bargaining process was fair and genuine.

In its decision, the FWC carefully evaluated the submissions and evidence from both parties. The FWC found that the agreement provided fair and reasonable terms for the employees, as it met the better off overall test. The FWC acknowledged the complexity of the bargaining process and the need to balance the rights and obligations of both employers and employees. The FWC also considered the economic context and the specific nature of the industry, concluding that the agreement was appropriate and fair. Based on these findings, the FWC approved the Boral Concrete Testers Enterprise Agreement 2024.

The FWC's final orders included the approval of the agreement, with specific conditions to ensure compliance with the Fair Work Act. The FWC mandated that the agreement would be in effect from the specified date and that both parties were bound by its terms. The FWC also directed that any disputes arising from the agreement would be resolved through the appropriate dispute resolution mechanisms outlined in the agreement itself.

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Background to the litigation

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Reasons for decision

Legal Principle Established