Boral Transport Limited Summary

[2023] FWCA 2867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Boral Transport Limited

(AG2023/2780)

BORAL TRANSPORT LIMITED HUNTER REGION TIPPER AGREEMENT 2023

Road transport industry
COMMISSIONER DURHAM	BRISBANE, 6 SEPTEMBER 2023

Application for approval of the Boral Transport Limited Hunter Region Tipper Agreement 2023

An application has been made for approval of an enterprise agreement known as the Boral Transport Limited Hunter Region Tipper Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Transport Limited (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Correspondence was sent to the Employer by my Chambers on 25 August 2023 raising a number of concerns including that the Agreement mentions apprentices at clauses 14.5(d) and 15.6(b), and trainees at clauses 14.5(d) and 15.6(d). However, no rates of pay are provided for apprentices or trainees. The Employer responded on 29 August 2023 advising by way of an undertaking that apprentices and trainees are not covered by the terms of the Agreement. I am consequently satisfied that per s. 193A(6A), apprenticeships and traineeships are not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Transport Workers’ Union of Australia NSW/QLD (Interim Governance) Branch (TWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the TWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the court concerned the approval of the Boral Transport Limited Hunter Region Tipper Agreement 2023. The applicant, Boral Transport Limited, sought to have the agreement recognised as a registered workplace agreement under the Fair Work Act 2009. The Fair Work Commission, which was responsible for assessing the application, was tasked with determining whether the agreement met the necessary criteria for approval.

The primary legal issue the court needed to address was whether the agreement contained all the mandatory terms specified in the Fair Work Act 2009. Additionally, the court had to consider whether the agreement had been genuinely negotiated and if it provided for a fair and efficient workplace. The court also needed to determine whether the agreement met the requirements for the application of the no disadvantage test, which ensures that the agreement does not place employees at a disadvantage compared to their situation if the agreement had not been made.

In reaching its decision, the court thoroughly examined the terms of the agreement and assessed whether it complied with the mandatory terms and genuine negotiation requirements of the Fair Work Act 2009. The court found that the agreement contained all the necessary mandatory terms and was genuinely negotiated. The court was also satisfied that the agreement did not place employees at a disadvantage compared to their situation if the agreement had not been made. Therefore, the court approved the application for the registration of the Boral Transport Limited Hunter Region Tipper Agreement 2023.

The court's final order was that the Boral Transport Limited Hunter Region Tipper Agreement 2023 be registered as a workplace agreement under the Fair Work Act 2009. This decision provided certainty for both the applicant and the employees involved, ensuring that the agreement would be recognised as a valid and enforceable workplace agreement.

Boral Transport Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established