Fulton Hogan Construction Pty Ltd

[2013] FWCA 5983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2013/8587)

FULTON HOGAN CONSTRUCTION PTY LTD AND THE CFMEU MELBOURNE AIRPORT CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 23 AUGUST 2013

Application for approval of the Fulton Hogan Construction Pty Ltd and the CFMEU Melbourne Airport Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Construction Pty Ltd and the CFMEU Melbourne Airport Civil Construction Industry Enterprise Agreement 2011-2015 (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 Construction Pty Ltd and employee organisation namely the Construction, Forestry, Mining and Energy Union (CFMEU). The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the CFMEU which will be covered by the Agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the employee organisations, taken as a group, are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

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 approval of the Fulton Hogan Construction Pty Ltd and the CFMEU Melbourne Airport Civil Construction Industry Enterprise Agreement 2011-2015. The application was opposed by the Australian Building and Construction Commission (ABCC). The application came before the Commission which held that the application should be dismissed. The primary issue before the Commission was whether the application should be approved. In reaching its decision, the Commission held that there was no basis on which the application could be approved. The agreement did not comply with the Fair Work Act 2009 as it failed to provide for the protection of vulnerable employees and to address the issue of sham contracting. The Commission held that the agreement was deficient in that it failed to provide for the protection of vulnerable employees and to address the issue of sham contracting. It was noted that the agreement did not contain any provisions to address the issue of sham contracting and that it failed to provide for the protection of vulnerable employees. The agreement also failed to address the issue of the classification of employees and the classification of contractors. As a result, the application was dismissed. The Commission made no orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established