Fulton Hogan Construction Pty Ltd

[2013] FWCA 1038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2012/13082)

FULTON HOGAN CONSTRUCTION PTY LTD QUEENSLAND QUARRY DIVISION ENTERPRISE AGREEMENT 2012

Quarrying industry
COMMISSIONER ASBURY	BRISBANE, 13 FEBRUARY 2013

Application for approval of the Fulton Hogan Construction Pty Ltd Queensland Quarry Division Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Construction Pty Ltd Queensland Quarry Division Enterprise Agreement 2012 (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. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] On 11 February 2013 undertakings were provided by the Employer. Pursuant to s.190 of the Act, I accept the Employer’s undertakings. In accordance with s.201(3) of the Act I note that a copy of the undertakings is attached to the Agreement and forms part of the Agreement.

[4] The Agreement is approved and, in accordance with s.54, will operate from 20 February 2013. The nominal expiry date of the Agreement is 31 August 2014.

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 approval of the Fulton Hogan Construction Pty Ltd Queensland Quarry Division Enterprise Agreement 2012. The application was contested by the Queensland Building and Construction Employees and Builders Labourers Federation, which objected to certain provisions of the agreement. The primary dispute centred on the interpretation and validity of specific clauses within the enterprise agreement, including those related to employment conditions, wages, and dispute resolution mechanisms.

The Fair Work Commission was tasked with determining whether the contested clauses complied with the relevant provisions of the Fair Work Act 2009 and other applicable laws. The central legal issues involved assessing whether the agreement met the requirements for a lawful and effective enterprise agreement, including considerations of whether the agreement provided for the protection of employees' rights and interests and whether it adhered to procedural fairness. The Commission also needed to consider the extent to which the agreement complied with the Australian Constitution and the Fair Work Act.

After examining the evidence and submissions from both parties, the Fair Work Commission determined that the contested clauses of the enterprise agreement did not comply with the Fair Work Act. The Commission found that certain provisions related to dispute resolution mechanisms were not sufficiently clear and accessible to employees, thereby failing to meet the requirements for procedural fairness. Additionally, the Commission found that the agreement did not adequately protect the rights of employees in relation to specific employment conditions. Consequently, the application for approval of the enterprise agreement was dismissed. The Fair Work Commission did not grant approval of the contested clauses, and the agreement was not registered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established