Boral Resources (WA) Ltd T/A Boral Asphalt

[2014] FWCA 8500

[2014] FWCA 8500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boral Resources (WA) Ltd T/A Boral Asphalt
(AG2014/9980)

BORAL ASPHALT WESTERN AUSTRALIA, SPRAY DRIVERS’ ENTERPRISE AGREEMENT 2013

Asphalt industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 NOVEMBER 2014

Application for approval of the Boral Asphalt Western Australia, Spray Drivers’ Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Boral Asphalt Western Australia, Spray Drivers’ Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made Boral Resources (WA) Ltd T/A Boral Asphalt. The Agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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

[4] 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).

[5] 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.

[6] 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.

[7] 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.

[8] 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 December 2016.

SENIOR DEPUTY PRESIDENT

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