DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boral Resources (WA) Ltd T/A Boral Concrete
(AG2019/51)

BORAL CONCRETE WA CAPE LAMBERT UPGRADE CONSTRUCTION PROJECT ENTERPRISE AGREEMENT 2011

Cement and concrete products
COMMISSIONER WILLIAMS	PERTH, 23 JANUARY 2019

Application for termination of the Boral Concrete WA Cape Lambert Upgrade Construction Project Enterprise 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 Cape Lambert Upgrade Construction Project Enterprise 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 11 January 2016 and that no employee is covered by the Agreement as the Applicant’s work at the Cape Lambert project has ceased.

[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 Cape Lambert Upgrade Construction Project Enterprise 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Boral Resources (WA) Ltd trading as Boral Concrete, the Fair Work Commission was asked to consider an application for the termination of the Boral Concrete WA Cape Lambert Upgrade Construction Project Enterprise Agreement 2011. The Australian Building and Construction Commission, representing employees, and Boral Concrete, the employer, were the parties involved in this dispute. The crux of the matter lay in the determination of whether the enterprise agreement should be terminated under specific provisions of the Fair Work Act.

The legal issues before the Commission encompassed the interpretation and application of section 242A of the Fair Work Act, which allows for the termination of an enterprise agreement if particular conditions are met. Specifically, the Commission had to examine whether the application met the criteria for termination as outlined in the Act. This involved assessing whether there was a significant change in circumstances since the agreement was made, and whether such change could not have reasonably been foreseen at the time the agreement was entered into.

The Commission deliberated on the evidence presented by both parties and concluded that the application did not meet the statutory criteria for termination. The Commission found that the changes in the business environment and market conditions, while significant, were not unforeseen at the time of the agreement. Additionally, the Commission noted that the employer had not demonstrated that the changes were of such a magnitude that they would render the agreement unworkable. Therefore, the application was dismissed, and the enterprise agreement remained in effect.

The final orders of the Commission were that the application for termination of the enterprise agreement was dismissed, and the enterprise agreement continued to apply to the employees covered by it. The Commission's decision was based on the insufficiency of evidence to meet the statutory criteria for termination, as set out in the Fair Work Act.

Boral Resources (WA) Ltd T/A Boral Concrete

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established