Application for approval of the Boral Tasmanian Fleet Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Boral Tasmanian Fleet Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Construction Materials Group Limited (Boral). The Agreement is a single enterprise agreement.

[2] In response to several issues raised with Boral it provided further submissions and written undertakings, a copy of which are attached in Annexure A. The views of the bargaining representatives were sought in relation to the 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. The undertakings are taken to be a term of the agreement.

[3] The undertakings relate to:

1. Shift-worker definition

[4] Clause 9 of the Agreement provides for workplace delegates' rights. Section 205A of the Act provides that an enterprise agreement must include a delegates' rights term for workplace delegates to whom the agreement applies. A "delegates' rights term" is defined as a term in a fair work instrument that provides for the exercise of the rights of workplace delegates[1]. A note to the definition provides that the rights of workplace delegates are set out in s 350C of the Act, and the delegates' rights term must provide at least for the exercise of those rights. In Construction, Forestry and Maritime Employees Union v Australian Industry Group[2] a Full Court of the Federal Court identified several features of a workplace delegates' rights clause which appeared in modern Awards as being "errors" with respect to the provision for the rights set out in s 350C of the Act. These included limitations as to representation only to employees of the employer of the delegate, rather than all employees who work in the enterprise, limits on communication with employees "for the purpose of representing their industrial interests" and the making of delegates' entitlements conditional upon compliance with a range of requirements[3]. On 23 January 2026 modern Awards were varied to address these "errors"[4].

[5] Clause 9 of the Agreement contains similar limitations as to the exercise of delegates rights as identified by the Federal Court. The clause is therefore less less favourable than the delegates' rights term now appearing in the Road Transport and Distribution Award 2020 (the Award). Accordingly, pursuant to s 205A(2) of the Act, the workplace delegates' rights term prescribed by the Award is taken to be a term of the Agreement.

Interaction with the National Employment Standards

[6] Clause 1.6 of the Agreement has the effect that if the National Employment Standards (NES) provides employees with an entitlement not dealt with in the Agreement, or an entitlement more favourable than is provided for in the Agreement, the relevant NES term applies (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Clause 8.1.3(b) - withholding monies on termination.

[7] Subject to the submissions and 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.

[8] The Transport Workers' Union of Australia (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) I note that the Agreement covers the TWU.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[1] Fair Work Act 2009 s 12

[2] [2025] FWCFB 187

[3] See further Construction, Forestry and Maritime Employees Union v Australian Industry Group [2025] FWCFB 187

[4] Variation of modern awards to include a delegates' rights term [2026] FWCFB 5

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