DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boral Resources (WA) Limited
(AG2019/187)

BORAL LOGISTICS WESTERN AUSTRALIA, LOGISTICS DRIVERS’ ENTERPRISE AGREEMENT 2014

Road transport industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 18 MARCH 2019

Application for termination of the Boral Logistics Western Australia, Logistics Drivers’ Enterprise Agreement 2014.

[1] This decision concerns an application made by Boral Resources (WA) Limited (the Applicant) on 18 December 2018 for the termination of the Boral Logistics Western Australia, Logistics Drivers’ Enterprise Agreement 2014 (the Agreement) made under s 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

226 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.

[4] In support of its application, the Applicant has provided a statutory declaration from Mr Phillip Harris (Mr Harris) who is the General Manager Quarries & Logistics of the Applicant.

[5] Mr Harris explained that the Agreement had a nominal expiry date of 30 June 2016, that no employee is covered by the Agreement and the Applicant has no intention to utilise this Agreement in the future as the business has no intention of engaging heavy vehicle drivers in the future.

[6] The Transport Workers’ union of Australia (the TWU) were invited to provide their views on the Application on 8 February 2018. The TWU have not opposed the application.

Consideration

[7] I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.

[8] The views of the employer have been taken into account and I accept Mr Harris’ statement in his statutory declaration that there are no employees covered by the Agreement. The TWU has not challenged this point.

[9] Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were Boral Resources (WA) Limited, the applicant, and the Transport Workers Union of Australia, the respondent. The dispute centred around the termination of the Boral Logistics Western Australia, Logistics Drivers’ Enterprise Agreement 2014, which was governed by the Fair Work Act 2009. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court included whether the applicant had provided sufficient evidence to justify the termination of the enterprise agreement and whether the termination would result in adverse consequences for the employees. The court had to consider whether the applicant had met the statutory criteria for termination and whether the termination was in the best interests of the employees. The court also had to determine whether the termination would result in a significant reduction in the employees' overall terms and conditions of employment.

In its reasoning, the court noted that the applicant had provided evidence to support its application for termination of the enterprise agreement. The court found that the applicant had met the statutory criteria for termination, including that there had been a significant change in the circumstances of the parties, and that the agreement was no longer appropriate. The court also found that the termination would not result in adverse consequences for the employees, as their terms and conditions of employment would not be significantly reduced. The court concluded that the termination was in the best interests of the employees and that the applicant had met its burden of proof. The court granted the application for termination of the enterprise agreement.

The final orders of the court included the termination of the Boral Logistics Western Australia, Logistics Drivers’ Enterprise Agreement 2014, effective from a specified date. The court also ordered that the termination would not result in a significant reduction in the employees' overall terms and conditions of employment. The court further ordered that the applicant must provide written notice of the termination to the employees and the respondent.

Boral Resources (WA) Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established