Application for approval of a single-enterprise agreement

[1] The decision concerns an application for approval of the Boral NSW & ACT Country Batch Plant Operators Enterprise Agreement 2024 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by Boral Resources (Country) Pty Limited (the Applicant). The Agreement is a single enterprise agreement. The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

[2] If the agreement is not a greenfields agreement, section 186(2)(a) of the FW Act requires the Fair Work Commission to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. The Agreement is not a greenfields agreement. The question of whether an enterprise agreement has been genuinely agreed to by the employees is determined by reference to section 188 of the FW Act. Section 188(4)(a) of the FW Act provides that the Fair Work Commission cannot be satisfied as to genuine agreement unless the Fair Work Commission is satisfied that sections 173 and 174 of the FW Act have been complied with. In considering the application, I raised a concern with the Applicant and The Australian Workers' Union (AWU), which was the only other bargaining representative for the Agreement, concerning compliance with sections 173 and 174 of the FW Act. The concern being that the name of the agreement in the Notice of Employee Representational Rights (NERR) was incorrect. The NERR named the agreement as the "Boral NSW & ACT Country Batch Plant Operators Enterprise Agreement 2023" (emphasis added). I sought the views of the Applicant and the AWU as to whether any such error in the NERR could be disregarded in accordance with section 188(5) of the FW Act. The Applicant submitted that the error in the NERR could be disregarded in accordance with section 188(5) of the FW Act. The AWU did not oppose that submission. Taking into account the views of the Applicant and the AWU, I am satisfied that that the reference to 2023 in the NERR is a minor error that can be disregarded in accordance with section 188(5) of the FW Act. In particular, I am satisfied that the employees were not likely to have been disadvantaged by that error.

[3] Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised a concern with the Applicant and the AWU that clauses 10.11 - 10.17, which deal with casual conversion, appear to reflect the scheme in National Employment Standards concerning casual conversion prior to February 2025. I sought confirmation as to whether the Applicant intended to rely upon clause 8.2 of the Agreement, which can be best described as a NES precedence clause, to resolve any such concern or propose an undertaking. The Applicant confirmed that it intends to rely upon clause 8.2 of the Agreement. Based upon that confirmation from the Applicant, the requirement in section 186(2)(c) is satisfied.

[4] Section 186(2)(d) of the FW Act requires the Fair Work Commission to be satisfied that the Agreement passes the better off overall test (BOOT). The assessment as to whether the Agreement passes the BOOT is applied in accordance with section 193A of the FW Act. In considering the application, I raised a concern with the Applicant and the AWU that the reference in clause 44 of the Agreement to Apprentices and Trainees (as defined by section 12 of the FW Act) gave rise a BOOT concern. The concern being:

a) The Employees defined as being covered by the Agreement are "an employee of Boral Country classified in accordance with this Agreement to principally work in a Boral Country Batch Plant (clause 2.1 & 3.1(b) of the Agreement);

b) Clause 24 of the Agreement sets out the classifications. There does not appear to be a classification for an Apprentice or Trainee;

c) The Agreement does not contain any wage rates for an Apprentice or Trainee; and

d) If Apprentices and / or Trainees were covered by the Agreement, such employees would be entitled to wage rates under the relevant modern award (which is incorporated at clause 5 of the Agreement).

[5] In raising this concern with the Applicant and the AWU, I expressed a preliminary view that the reference to Apprentices and Trainees at clause 44 of the Agreement appeared to be a drafting error, and that it did not appear that the Agreement was intended to cover Apprentices and Trainees. The Applicant submitted that there was such an error and that the Agreement was not intended to cover Apprentices and Trainees. The Applicant proposed an undertaking to meet this concern. The AWU did not oppose that submission or the undertaking. I accept the undertaking. In particular, I am satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. I am satisfied of those matters because I am satisfied that that the references in clause 44 of the Agreement were included in error. It was not intended that the Agreement was to cover Apprentices or Trainees. This is evident from the Agreement not providing a classification or wage rate for either Apprentices or Trainees. I have also accepted the undertaking after seeking the views of the bargaining representatives identified in section 190(4) of the FW Act. A copy of the undertaking is attached at Annexure A of this decision.

[6] Based on the material provided by the Applicant and the AWU, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

[7] Section 201 of the FW Act requires the approval decision to note certain matters. The first such matter that is relevant to this application is section 201(2) of the FW Act. The Australian Workers' Union, which was a bargaining representative for the Agreement, has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers The Australian Workers' Union. The second such matter that is relevant to this application is section 201(3) of the FW Act. I note that the Agreement is approved with the attached undertaking, which is taken to be a term of the Agreement.

[8] The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 11 June 2025. The nominal expiry date of the Agreement is 8 October 2027.

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