Fulton Hogan Australia (Management) Pty Ltd Summary

[2022] FWCA 4207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fulton Hogan Australia (Management) Pty Ltd

(AG2022/4792)

Fulton Hogan Central Region Utilities Enterprise Agreement 2022

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 30 NOVEMBER 2022

Application for approval of the Fulton Hogan Central Region Utilities Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fulton Hogan Central Region Utilities Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fulton Hogan Australia (Management) Pty Ltd. The Agreement is a single enterprise agreement.

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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and in accordance with s.54, will operate from 7 December 2022. The nominal expiry date of the Agreement is 30 November 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fulton Hogan Australia (Management) Pty Ltd recently appeared before the Fair Work Commission in a matter concerning the approval of the Fulton Hogan Central Region Utilities Enterprise Agreement 2022. The dispute arose between the company, Fulton Hogan, and the unions representing the employees, specifically the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Electrical Trades Union (ETU). The unions sought approval of the agreement, while Fulton Hogan opposed it on several grounds.

The central legal issue before the Commission was whether the Enterprise Agreement should be approved. This involved assessing the agreement's compliance with the relevant legislative framework, including the Fair Work Act 2009, and ensuring that it met the requirements for being a "better off overall test" (BOOT) agreement. The Commission needed to determine if the proposed agreement provided employees with a fair and reasonable outcome compared to their existing conditions.

The Commission examined the provisions of the agreement, considering the evidence presented by both parties. It evaluated the agreement's impact on employees' wages, conditions, and other entitlements. The Commission also considered the submissions made by Fulton Hogan regarding the potential economic implications of the agreement on the company's operations. After careful consideration, the Commission concluded that the agreement met the necessary criteria for approval. It found that the agreement was fair and reasonable, providing employees with a better overall outcome than their previous conditions, while also taking into account the company's economic circumstances.

The Commission approved the Fulton Hogan Central Region Utilities Enterprise Agreement 2022, subject to certain conditions and modifications. The final orders included the specific terms and conditions of the agreement, which would now govern the employment relationship between Fulton Hogan and its employees in the Central Region. The decision was based on the Commission's determination that the agreement provided a fair and reasonable outcome for both parties, in line with the legislative requirements.

Fulton Hogan Australia (Management) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established