Bothar Boring and Tunnelling (Australia) Pty Ltd Summary

[2024] FWCA 1407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Bothar Boring and Tunnelling (Australia) Pty Ltd

(AG2024/993)

BOTHAR BORING AND TUNNELLING (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 18 APRIL 2024

Application for approval of the Bothar Boring and Tunnelling (Australia) Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bothar Boring and Tunnelling (Australia) Pty Ltd Enterprise 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 Bothar Boring and Tunnelling (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

The Agreement title on the NERR provided to the employees is ‘Enterprise Agreement 2023’ whilst clause 1.1 of the Agreement title is ‘Bothar Boring and Tunnelling (Australia) Pty Ltd Enterprise Agreement 2023’. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] this constitutes a minor procedural or technical error for the purpose of s.188(5) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Employer has 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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 April 2024. The nominal expiry date of the Agreement is 17 April 2028.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Bothar Boring and Tunnelling (Australia) Pty Ltd applied for the approval of the Enterprise Agreement it had entered into with its employees. The agreement, dated 2023, was the subject of scrutiny to ensure its compliance with relevant labour laws and fairness provisions. The case involved considerations around the agreement's provisions on wages, conditions of employment, and other related matters that impact the employees.

The primary legal issues before the court were whether the agreement met the statutory requirements for enterprise agreements under the Fair Work Act 2009, including the provisions for genuine bargaining and fairness. The court had to assess whether the agreement was made in good faith, whether it contained only matters that could be included in an enterprise agreement, and whether the process of making the agreement was fair and compliant with the procedural fairness requirements. Additionally, the court examined if the agreement provided for a fair and reasonable set of terms and conditions.

The Fair Work Commission considered the evidence presented regarding the bargaining process and the content of the agreement. It determined that the agreement was made in good faith and followed a fair process. The Commission found that all provisions in the agreement were matters that could be included in an enterprise agreement, and the terms and conditions were fair and reasonable. The Commission approved the agreement, finding that it complied with all necessary legal requirements.

The Fair Work Commission approved the Bothar Boring and Tunnelling (Australia) Pty Ltd Enterprise Agreement 2023, confirming its compliance with the Fair Work Act 2009. The agreement was deemed to be made in good faith and to contain fair and reasonable terms and conditions, thus meeting all statutory requirements for approval.

Bothar Boring and Tunnelling (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established