DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Fulton Hogan Construction
(AG2019/3900)

FULTON HOGAN PTY LTD MINOR CONSTRUCTION - PIPELINES SUBDIVISIONS & CIVIL DEPARTMENT ENTERPRISE AGREEMENT 2016

Building services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 3 DECEMBER 2019

Application for variation of the Fulton Hogan Pty Ltd Minor Construction - Pipelines Subdivisions & Civil Department Enterprise Agreement 2016.

[1] An application has been made for approval of a variation to the Fulton Hogan Pty Ltd Minor Construction - Pipelines Subdivisions & Civil Department Enterprise Agreement 2016 (the Agreement). The application was made by Fulton Hogan Construction pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 3 December 2019.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Fulton Hogan Construction is a decision of the Fair Work Commission (FWC) concerning an application by Fulton Hogan Pty Ltd to vary the Enterprise Agreement with its employees. The employees were represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the proposed changes to the Agreement, which sought to introduce a tiered wage system, alter shift patterns, and modify the conditions for overtime. The FWC was tasked with determining whether the proposed changes met the "better off overall test" and whether they were in the interests of the employees.

The legal issues before the FWC involved whether the proposed changes would result in employees being better off overall, taking into account all benefits and detriments, and whether the changes aligned with the principles of the Fair Work Act 2009. The FWC also had to consider if the changes would cause undue hardship to the employees and whether they were necessary for the employer's business operations. The FWC assessed the evidence provided by both parties, including submissions on economic and operational factors, to determine the fairness and reasonableness of the proposed changes.

The FWC concluded that the proposed changes did not meet the better off overall test. The FWC found that the tiered wage system and alterations to shift patterns would result in significant detriments for the employees, outweighing any potential benefits. The FWC also considered the impact on employee work-life balance and the lack of compelling evidence that the changes were necessary for the employer's business operations. The FWC determined that the proposed changes did not align with the principles of the Fair Work Act and were not in the best interests of the employees. Consequently, the application for variation was dismissed.

The FWC's decision was clear and final, with no further appeal available. The Enterprise Agreement remained unchanged, and the terms and conditions of employment for the employees continued as per the existing agreement. The FWC's reasoning underscored the importance of ensuring that any changes to an enterprise agreement are fair and reasonable, providing a balance between the interests of the employer and the rights of the employees.

Fulton Hogan Construction

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established