Boral Transport Limited

[2022] FWCA 1792

The attached document replaces the document previously issued with the above code on 31 May 2022.

The approved Enterprise Agreement has been attached to the Decision.

Alana Spensley-Armstrong
Associate to Commissioner P Ryan

Dated 7 June 2022.

[2022] FWCA 1792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boral Transport Limited

(AG2022/1507)

BORAL TRANSPORT LIMITED NSW TIPPER ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER P RYAN	SYDNEY, 31 MAY 2022

Application for approval of the Boral Transport Limited NSW Tipper Enterprise Agreement 2021

Boral Transport Limited (the Employer) has made an application for approval of an enterprise agreement known as the Boral Transport Limited NSW Tipper Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining representative

The Transport Workers Union (TWU) 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) of the Act, I note that the Agreement covers the TWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of the Boral Transport Limited NSW Tipper Enterprise Agreement 2021. The application was made by Boral Transport Limited, the employer, to the Fair Work Commission. The nature of the dispute was whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The key legal issues the court had to address were whether the agreement was a "single enterprise agreement" within the meaning of the Fair Work Act and whether it complied with the requirements of section 233 of the Act, which sets out the matters that must be covered by an enterprise agreement. Additionally, the court needed to determine if the agreement had been made in accordance with the procedural requirements outlined in the Act, specifically whether the agreement had been fairly and genuinely negotiated and whether it had been properly presented to the employees for their consideration.

The Fair Work Commission found that the agreement was a single enterprise agreement as it related to a single enterprise, Boral Transport Limited, and covered all employees within the relevant bargaining unit. The Commission also concluded that the agreement complied with all the mandatory topics required by section 233 of the Fair Work Act. The Commission was satisfied that the agreement had been fairly and genuinely negotiated and had been properly presented to the employees, as evidenced by the documentation and testimonies provided. Therefore, the Commission approved the application for the agreement to be registered.

The Fair Work Commission approved the Boral Transport Limited NSW Tipper Enterprise Agreement 2021 and registered it under the Fair Work Act. This decision provided legal certainty for the parties involved and established a framework for future negotiations and agreements within the enterprise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established