Boral Resources (Vic) Pty Ltd

[2016] FWCA 2775

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boral Resources (Vic) Pty Ltd T/A Boral

(AG2016/900)

BORAL REGIONAL VICTORIA TRANSPORT ENTERPRISE

AGREEMENT 2015

Road transport industry

COMMISSIONER ROE

MELBOURNE, 4 MAY 2016

Application for approval of the Boral Regional Victoria Transport Enterprise Agreement

2015.

[1] An application has been made for approval of an enterprise agreement known as the

Boral Regional Victoria Transport Enterprise Agreement 2015 (the Agreement). The

application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made

Boral Resources (VIC) Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are

relevant to this application for approval have been met. The Agreement does not cover all of

the employees of the employer, however, taking into account the factors in section 186(3) and

(3A) of the Act I am satisfied that the group of employees was fairly chosen.

[3] The Transport Workers’ Union of Australia 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) of the Act I note that the Agreement covers the organisation.
[2016] FWCA 2775

[4] The Agreement was approved on 4 May 2016 and, in accordance with s.54 of the Act,

will operate from 11 May 2016. The nominal expiry date of the Agreement is

31 August 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Boral Regional Victoria Transport Enterprise Agreement 2015 (the Agreement) made by Boral Resources (VIC) Pty Ltd. The application was submitted under section 185 of the Fair Work Act 2009 (the Act). The Transport Workers’ Union of Australia, acting as a bargaining representative for the agreement, had also provided notice under section 183 of the Act, indicating its desire for the Agreement to cover its members. The Agreement, which was to be a single enterprise agreement, was subject to the approval process as per the provisions of the Act.

The legal issues before the Commission included whether the Agreement met the criteria for approval under sections 186, 187, and 188 of the Act, particularly given that it did not cover all employees of the employer. The Commission needed to determine if the group of employees covered by the Agreement was fairly chosen, in accordance with section 186(3) and (3A) of the Act. Additionally, the Commission had to consider the implications of the Transport Workers’ Union of Australia's notice under section 183 of the Act and whether the Agreement appropriately covered the union's members.

The Commission found that the requirements of sections 186, 187, and 188 of the Act were satisfied. It was determined that although the Agreement did not cover all employees of the employer, the group of employees it did cover was fairly chosen, taking into account the factors outlined in section 186(3) and (3A) of the Act. The Commission also noted that the Agreement covered the Transport Workers’ Union of Australia, in accordance with section 201(2) of the Act. Following these findings, the Agreement was approved and set to operate from 11 May 2016, with a nominal expiry date of 31 August 2018.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established