Application for approval of the Boral Tasmanian Concrete & Quarries Enterprise Agreement 2025.

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

[2] The Notice of Employee Representational Rights issued to employees on 19 December 2024 titled the Agreement as the Boral Tasmanian Concrete & Quarries Enterprise Agreement 2024 whilst the Agreement is titled the Boral Tasmanian Concrete & Quarries Enterprise Agreement 2025. I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1]that this constitutes a minor technical or procedural error for the purposes of s 188(5)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

[3] The Employer has provided written undertakings. A copy of the undertakings is attached at 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.

[4] Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

[5] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Annual Leave: Clause 4.2.1 of the Agreement states that annual leave must be taken at a mutually agreeable time having regard to the Company's operational requirements. Section 88(2) of the Act states that an employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

• Compassionate Leave - Evidence Requirements: Clause 4.5.3 states that periods of compassionate leave must be supported by a medical certificate from a registered health practitioner or such other documentary evidence as deemed appropriate by the Company. Pursuant to s.107 of the Act, evidence required to support taking compassionate leave should be that which would satisfy a reasonable person.

• Withholding of Monies on Termination: Clause 5.1.5(b) of the Agreement states that if an employee fails to give the required period of notice, the Company may, to the extent permitted by law, withhold from any monies due to the Employee on termination, an amount not exceeding the amount the Employee would have been paid in respect of a period of notice required by this clause less any period of notice actually given by the Employee. This clause does not limit the source of monies which may be deducted, and as such, the effect is that it appears to permit the employer to deduct employee's entitlements under the NES.

[6] However, noting clause 1.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Australian Workers' Union being a bargaining representative for the Agreement supports the approval of the Agreement and 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 organisation.

[8] The Agreement is approved, and in accordance with s.54 of the Act, will operate from 4 July 2025. The nominal expiry date of the Agreement is 27 June 2028.

[1] [2019] FWCFB 318.

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