Boral Resources (Vic) Pty Ltd T/A Boral Asphalt

[2020] FWCA 5754

[2020] FWCA 5754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boral Resources (Vic) Pty Ltd T/A Boral Asphalt
(AG2020/2817)

Road transport industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 30 OCTOBER 2020

Application for termination of the Boral Asphalt (Vic Metro Logistics) Drivers’ Enterprise Agreement 2016.

[1] Boral Resources (Vic) Pty Ltd T/A Boral Asphalt (Boral) has applied under s.225 of the Fair Work Act 2009 (Cth)(Act) to terminate the Boral Asphalt (Vic Metro Logistics) Drivers’ Enterprise Agreement 2016 (AG2017/1133)(Agreement). The Agreement nominally expired on 30 September 2019. 1

[2] Section 226 of the Act provides:

“When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Consideration

[3] The Agreement reached its nominal expiry date on 30 September 2019. 2 Boral has standing to make the application because pursuant to s.225(a) of the Act it is an employer covered by the Agreement. Accordingly, the jurisdictional prerequisites for the making of an application under s.225 of the Act are satisfied.

Public interest – s.226(a)

[4] Boral contends that it is not contrary to the public interest to terminate the Agreement because the Agreement does not cover any employees, it has nominally expired and there is no intention to renew the Agreement. 3

[5] The notion of public interest refers to matters that might affect the public as a whole, as distinct from the interests of the parties. 4 In the context of s.226 of the Act, public interest considerations are directed to the consequences of terminating the Agreement and particularly those consequences which are likely foreseeable.5 The question is whether the Commission is satisfied that termination of the Agreement is not contrary to the public interest.

[6] There is nothing before me which raises public interest considerations that might militate against termination of the Agreement, such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. 6

[7] Based on the material filed with the Commission, I am satisfied that termination of the Agreement is not contrary to the public interest.

Section 226(b) – appropriateness of terminating the Agreement

[8] Boral, as the applicant employer covered by the Agreement, supports its termination.

[9] It is declared by Boral that there are no employees covered by the Agreement. 7 Accordingly, there are no employee views or circumstances that bear upon the assessment of appropriateness.

[10] As to the Transport Workers’ Union of Australia (TWU), being an employee organisation covered by the Agreement, 8 its views were sought in respect of the application to terminate the Agreement. On 12 October 2020, the TWU advised that it makes no submissions.

[11] Having regard to all the circumstances as required by ss.226(b)(i) and (ii) of the Act, I consider it is appropriate to terminate the Agreement.

Conclusion and disposition

[12] As I have concluded that it is not contrary to the public interest to terminate the Agreement, and that it is appropriate to do so taking into account all the circumstances, I must terminate the Agreement.

[13] Accordingly, the Agreement is terminated. In accordance with s.227 of the Act, the termination will operate from 30 October 2020.

DEPUTY PRESIDENT

 1   [2017] FWCA 2155 at [4]; Agreement clause 1.2

 2   Ibid

 3   Form F24C Declaration made by Mr Michael Kulk, Human Resources Business Partner dated 17 September 2020 (Kulk declaration) at 2.1

 4   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 (Kellogg Brown) at p.40; see also Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 (Aurizon)at [153]

 5   Kellogg Brown at p.41

 6   Kellogg Brown at p.41

 7   Kulk declaration at 2.1-2.3

 8   [2017] FWCA 2155 at [3]; Agreement clause 1.3(b)

Printed by authority of the Commonwealth Government Printer

<AE424054  PR724032 >