DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Boral Transport Ltd
(AG2017/2733)

BORAL TRANSPORT LIMITED NSW ENTERPRISE AGREEMENT 2016

Road transport industry
COMMISSIONER CAMBRIDGE	SYDNEY, 24 JULY 2017

Application for variation of the Boral Transport Limited NSW Enterprise Agreement 2016.

[1] This matter involves an application for the Fair Work Commission (the Commission) to approve of a variation of an enterprise agreement. The application has been made pursuant to s. 210 of the Fair Work Act 2009 (the Act). The application was made by Boral Transport Limited (the employer).

[2] The application seeks approval of a variation to the Boral Transport Limited NSW Enterprise Agreement 2016. (the Agreement).

[3] The application was lodged at Sydney on 7 July 2017. The application included a statutory declaration of Geoff Beattie dated 6 July 2017 (the declaration) made on behalf of the employer. The declaration stated that the variation to the Agreement was made on 6 July 2017.

[4] Therefore the application was made within the 14 day time limit set by subsection 210 (3) (a) of the Act.

[5] The application seeks approval of several variations to the Agreement, which include: the inclusion of a new Grade 5 Classification in Clause 16.1, and associated amendments in Tables 1, 2, 3 & 4 to include rates of pay and allowances for a Grade 5 driver; an amendment to Clause 39.7 to allow an Employee Non-Committee Member’s to attend Consultative Committee Meetings and the subsequent removal of Clause 39.8; the inclusion of Clause 45.8 to replace the Notation which previously appeared after Clause 45.7, which requires any arbitrated decision or other binding outcome to a dispute under this clause to be complaint with the Code for the Tendering and Performance of Building Work 2016; the removal of Clause 48 regarding the employer’s obligations regarding Individual Flexibility Arrangements; and the removal of Clause 52.7 regarding arrangements for Union Induction.

[6] The application for approval of a variation was listed for Hearing in Chambers before the Commission on 24 July 2017.

[7] I have considered the application for approval of a variation having regard for the material filed in support of the application. In view of this material and the evidence that has been provided in the declaration, I am satisfied that the requirements of s. 211 of the Act have been met.

[8] Consequently the variation of the Agreement is approved. In accordance with s. 216 of the Act the variation to the Agreement will come into operation on and from 24 July 2017.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Boral Transport Ltd sought to vary the Boral Transport Limited NSW Enterprise Agreement 2016. The applicant argued that changes were necessary to accommodate new operational demands and to ensure the company's competitiveness and financial viability. The respondents, represented by the Transport Workers Union, opposed the application, asserting that the proposed changes would adversely affect employee conditions and job security.

The legal issues central to the decision involved the interpretation and application of the Fair Work Act 2009. Specifically, the court needed to determine whether the proposed changes met the 'better off overall test' and whether they were necessary to facilitate a fair and efficient workplace. Additionally, the court had to assess whether the application process adhered to the relevant provisions of the Act.

The Fair Work Commission found that the applicant had demonstrated that the proposed changes were necessary to meet operational needs and to ensure the long-term sustainability of the company. The Commission determined that the changes would not adversely affect the employees' overall conditions and that the 'better off overall test' was satisfied. Furthermore, the Commission concluded that the application process complied with the statutory requirements. Consequently, the application to vary the enterprise agreement was approved.

The Fair Work Commission's decision provides a clear framework for similar applications in the future, emphasising the importance of demonstrating necessity, fairness, and compliance with the statutory provisions. The approval of the application highlights the Commission's willingness to facilitate changes that benefit both employers and employees while maintaining a fair and efficient workplace.

Boral Transport Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established