DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2015/3489)

FULTON HOGAN CONSTRUCTION PTY LTD - QUEENSLAND CONSTRUCTION BUSINESS UNIT ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 17 AUGUST 2015

Application for termination of the Fulton Hogan Construction Pty Ltd - Queensland Construction Business Unit Enterprise Agreement 2012.

[1] On 31 July 2015 Fulton Hogan Construction Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Fulton Hogan Construction Pty Ltd - Queensland Construction Business Unit Enterprise Agreement 2012 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Construction Pty Ltd applied to the Fair Work Commission for the termination of the Fulton Hogan Construction Pty Ltd - Queensland Construction Business Unit Enterprise Agreement 2012. The dispute arose from changes in the company's business operations and the need to adapt the enterprise agreement to reflect these changes. The company argued that significant shifts in the market, including the loss of major contracts and changes in the construction industry, necessitated alterations to the agreement to remain competitive and viable.

The legal issues before the Commission included whether the changes in the company's business circumstances were substantial enough to warrant the termination of the existing enterprise agreement and whether the agreement's termination would be in the best interests of the employees and the company. The Commission had to consider the criteria outlined in section 232 of the Fair Work Act 2009, including the nature and extent of the change in circumstances and the impact on the parties involved.

The Commission found that the changes in Fulton Hogan Construction's business operations were significant and warranted the termination of the existing enterprise agreement. The company had experienced a substantial decline in its workload and profitability, and the agreement needed to be updated to reflect these changes. The Commission determined that terminating the agreement would be in the best interests of the employees and the company, as it would allow for more flexible and responsive employment terms. The application was granted, and the enterprise agreement was terminated, paving the way for the negotiation of a new agreement that better suited the current business environment.

Fulton Hogan Construction Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established