BOC Limited [2025] FWCA 1078 (28 March 2025)

[1] BOC Limited (ABN: 95 000 029 729) has applied for approval of an enterprise agreement known as the BOC Limited (CES) Enterprise Agreement 2024 under s 185 of the Fair Work Act 2009.

[2] The Agreement is a single enterprise agreement.

[3] I observe that clause 17.7.4, in relation to public holidays, may be inconsistent with s 115(3) of the Act and the National Employment Standards.

[4] I note clause 3.2.5 of the Agreement, which gives precedence to the NES and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Employer 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.

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

[7] I am of the view that clause 8.3 - "Delegate Training Leave" is a delegates' rights term and that it is not less favourable than clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020. This is because the Agreement clause provides for 3 training days per year, compared with 5 days for initial training and one day in each subsequent year. In addition, the Agreement clause requires that an employee representative give 4 weeks' notice of intention to attend training course, rather than 5 weeks in the Award clause. Last, the Agreement clause provides that delegates will "also be afforded any other entitlements applicable under the Award, as amended from time to time" in clause 8.3.7

[8] The Union submitted that the Agreement clause does not clearly provide for workplace delegates rights, due to the use of the term 'Employee Representative,' which is undefined. However, the clause provides for 'Delegate Training Leave'; defines 'Workplace Delegate' by referring to the definition in the Act, and then proceeds to use the term Employee Representative or Eligible Employee Representative in the body of the clause. While this drafting is less than ideal, a contextual reading of the clause means that it is sufficiently clear that the terms 'Workplace Delegate', 'Employee Representative' and 'Eligible Employee Representative' are interchangeable within the clause.

[9] The Australian Manufacturing Workers' Union (AMWU) 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 AMWU.

[10] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 4 April 2025.

[11] In accordance with clause 3.1.1, the nominal expiry date of the Agreement is 11 December 2028.

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