Boral Resources (WA) Ltd T/A Boral Asphalt Summary

[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

Printed by authority of the Commonwealth Government Printer

Boral Resources (WA) Ltd, trading as Boral Asphalt, applied to the Fair Work Commission for the approval of the Boral Asphalt Western Australia, Spray Drivers’ Enterprise Agreement 2013. The dispute involved the application of the Fair Work Act 2009 and the Fair Work Regulations 2009, particularly regarding the procedural fairness and the good faith bargaining requirements under the Act.

The legal issues before the court were whether the enterprise agreement met the procedural requirements of the Act, including whether the parties had genuinely attempted to reach an agreement through good faith bargaining and if the agreement was fair and reasonable. Additionally, the court examined whether the agreement provided for the proper protection of employees' rights and interests.

The Fair Work Commission found that the agreement was procedurally sound and that there was evidence of genuine attempts at good faith bargaining. The Commission determined that the agreement was fair and reasonable, taking into account the complexities and challenges faced by both parties during the negotiations. The agreement was approved, with the Commission emphasising the importance of the parties' commitment to resolving their differences and reaching a fair outcome for the employees.

The final orders of the Commission included the approval of the Boral Asphalt Western Australia, Spray Drivers’ Enterprise Agreement 2013, with specific provisions regarding the terms and conditions of employment, the dispute resolution process, and the rights and obligations of both the employer and the employees. The decision underscored the Commission's role in ensuring that enterprise agreements are reached through fair and lawful processes, protecting the interests of both employers and employees.

Boral Resources (WA) Ltd T/A Boral Asphalt

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