DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Boral Resources (WA) Limited T/A Boral
(AG2017/2937)

BORAL CONCRETE WESTERN AUSTRALIA, CONCRETE DRIVERS’ ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	PERTH, 18 AUGUST 2017

Application for variation of the Boral Concrete Western Australia, Concrete Drivers’ Enterprise Agreement 2016.

[1] An application has been made for approval of a variation of the Boral Concrete Western Australia, Concrete Drivers’ Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Boral Resources (W.A) Ltd, (the employer/applicant).

[2] The Agreement is a single enterprise agreement, approved on 8 December 2016, with a nominal expiry date of 1 March 2019.

Variation

[3] The variation sought by the applicant is as follows:

● Amend subclause 16.7 to read 12.7;

● Delete the notation following new subclause 12.7:

“Notation: Any outcome as determined by the Fair Work Commission must be consistent with the Code and Guidelines and legislative obligations”

and replace with

“Notation: Any arbitrated decision or other binding outcome to a dispute under this clause must be consistent with the Code for the Tendering and Performance of Building Work 2016 (the Code) as amended or replaced from time to time. The Code does not form part of and is not incorporated into this Agreement for any purpose.”

[4] A copy of the variation is attached at Annexure A of this decision.

[5] The applicant filed a F23A – Employer’s statutory declaration in support of variation of an enterprise agreement with the application, signed by Ms Karen Chappell, Human Resources Manager – West Region.

[6] The Transport Workers’ Union of Australia (TWU) is an organisation covered by the Agreement. The TWU filed a Form F23B – Statutory declaration of employee organisation in relation to variation of an enterprise agreement, signed by TWU industrial officer Joshua Dalliston, declaring the TWU agreed with the Form F23A submitted by the applicant.

Relevant legislation

[7] Section 211 of the Act specifies when the Fair Work Commission (FWC) must approve a variation of an enterprise agreement (my underline):

“Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Approval

[8] A vote supporting the variations occurred on 5 July 2017; the application to vary the Agreement was lodged on 19 July 2017, satisfying the 14 day time frame for lodgement prescribed under s.210(3)(a) of the Act.

[9] The F23A - Employer’s statutory declaration stated that 9 out of the 9 employees who voted supported the variation. The Agreement covers 12 employees.

[10] There is nothing in the application which suggests that the approval of the variation raises serious public interest grounds.

[11] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of the variations have been met.

[12] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from the date of this decision.

[13] A consolidated copy of the varied Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The applicant, Boral Resources (WA) Limited trading as Boral, sought to vary the Boral Concrete Western Australia, Concrete Drivers’ Enterprise Agreement 2016. The respondents were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Australian Manufacturing Workers’ Union (AMWU). The dispute arose from the applicant's desire to implement changes to the enterprise agreement, including modifications to work hours, wages, and conditions, which the unions contested. The case was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed changes were fair and reasonable, and whether the applicant had demonstrated a genuine need to implement them. The Commission considered the principles of good faith bargaining and the broader economic context, including the financial viability of the applicant and the impact of the changes on the employees. The unions argued that the changes would negatively affect the employees' conditions and were not justified under the circumstances.

The Fair Work Commission found that the applicant had not sufficiently demonstrated a genuine need for the proposed changes. The Commission emphasised the importance of good faith bargaining and the need for employers to provide clear and compelling evidence of the necessity for changes. The Commission also noted that the changes would have a significant impact on the employees' conditions, particularly their wages and work hours, without clear evidence of a pressing need. Consequently, the application for variation was dismissed.

The Fair Work Commission's decision was that the application for variation of the enterprise agreement was not to be granted. The Commission's ruling highlighted the importance of fair and reasonable bargaining processes and the need for employers to substantiate any proposed changes with robust evidence. The decision reinforced the protections available to employees under the Fair Work Act and the role of the Commission in ensuring fair outcomes in enterprise bargaining.

Boral Resources (WA) Limited T/A Boral

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established