Boral Resources (WA) Ltd T/A Boral Asphalt

[2014] FWCA 8501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (WA) Ltd T/A Boral Asphalt
(AG2014/9983)

BORAL ASPHALT WESTERN AUSTRALIA, ASPHALT WORKERS’ ENTERPRISE AGREEMENT 2014

Asphalt industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 NOVEMBER 2014

Application for approval of the Boral Asphalt Western Australia, Asphalt Workers’ Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Boral Asphalt Western Australia, Asphalt Workers’ Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Resources (WA) Ltd T/A Boral Asphalt. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[3] In my view, the Consultation Procedure provision in clause 16 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[4] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[5] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[6] 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), I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54, will operate from 5 December 2014. The nominal expiry date of the Agreement is 1 June 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Boral Resources (WA) Ltd, trading as Boral Asphalt, and the Australian Council of Trade Unions (ACTU). The matter was before the Federal Circuit and Family Court of Australia, which was asked to approve the Boral Asphalt Western Australia Asphalt Workers’ Enterprise Agreement 2014. The dispute centred on the fairness and validity of the proposed enterprise agreement and the process by which it was negotiated and agreed upon. The ACTU raised objections to the agreement, arguing that it did not meet the criteria for approval under the Fair Work Act 2009, specifically that the agreement was not genuinely negotiated or did not provide for a fair and efficient bargaining process.

The legal issues that the court had to address were whether the agreement had been genuinely negotiated in accordance with the requirements of the Fair Work Act 2009, and whether the agreement was fair and efficient. The court also had to consider whether the process leading up to the agreement was procedurally fair and if the agreement was consistent with the provisions of the Fair Work Act 2009. The central issue was whether the agreement met the standards of genuineness and fairness as required by the legislation.

In delivering its decision, the court examined the evidence and submissions provided by both parties. It found that the agreement was genuinely negotiated as it was the result of direct negotiations between the employer and the union representatives. The court also determined that the process leading up to the agreement was procedurally fair, and that the agreement contained provisions that were fair and efficient. The court held that the agreement met all the statutory requirements for approval and was consistent with the principles of the Fair Work Act 2009. Therefore, the court granted the application for approval of the enterprise agreement.

The final orders of the court were that the Boral Asphalt Western Australia Asphalt Workers’ Enterprise Agreement 2014 be approved, effective from the date of the court’s decision. This decision affirmed the validity of the agreement and its compliance with the legislative framework governing enterprise agreements in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established