Boral Resources (WA) Ltd T/A Boral Concrete

[2019] FWCA 362

[2019] FWCA 362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boral Resources (WA) Ltd T/A Boral Concrete
(AG2019/49)

BORAL CONCRETE WA MARANDOO MINE PHASE 2 PROJECT AWU GREENFIELDS AGREEMENT 2011

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 23 JANUARY 2019

Application for termination of the Boral Concrete WA Marandoo Mine Phase 2 Project AWU Greenfields Agreement 2011.

[1] This decision concerns an application made by Boral Resources (WA) Ltd T/A Boral Concrete (the Applicant) for the termination of the Boral Concrete WA Marandoo Mine Phase 2 Project AWU Greenfields Agreement 2011 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] 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.

[4] 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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Craig Excell (Mr Excell) who is the General Manager, Concrete WA of the Applicant.

[6] Mr Excell explains that the Agreement had a nominal expiry date of 12 December 2015 and that no employee is covered by the Agreement as the Applicant’s work at the Marandoo project has ceased with no expectation of future work occurring on this site.

[7] The Australian Workers’ Union (AWU) was invited to provide its view on the application and has advised it does not object to the termination.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the AWU, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Boral Concrete WA Marandoo Mine Phase 2 Project AWU Greenfields Agreement 2011 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

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