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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boral Resources (WA) Ltd, trading as Boral Concrete, applied to the Fair Work Commission for the termination of the Boral Concrete WA Marandoo Mine Phase 2 Project AWU Greenfields Agreement 2011. The applicant sought termination on the grounds that the agreement was no longer appropriate for the current operational requirements of the project. The Australian Workers’ Union (AWU) contested the application, arguing that the agreement should remain in force to ensure job security and maintain industrial peace.

The court was required to determine whether the conditions under which the agreement was made had substantially changed, rendering the agreement inappropriate for the current operational needs. The court also had to consider the impact of the termination on the employees and the broader industrial relations environment. Furthermore, the court examined whether the applicant had acted in good faith and whether there were alternative solutions that could be explored to address the operational challenges without resorting to termination.

The Fair Work Commission found that the operational environment had indeed changed significantly since the agreement was made, and these changes were beyond the control of the parties. The court noted that the applicant had demonstrated a genuine effort to seek alternative arrangements but was ultimately unable to find a solution that met the current operational requirements. The court also considered the potential impact on the employees and the broader industrial relations environment, but concluded that the operational needs of the project took precedence. Consequently, the court granted the application for termination, finding that it was in the best interest of the business to do so.

The court ordered that the Boral Concrete WA Marandoo Mine Phase 2 Project AWU Greenfields Agreement 2011 be terminated as of a specified date. The order also included provisions for the protection of employees’ rights and entitlements during the transition period following the termination of the agreement.

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