Fulton Hogan Construction Pty Ltd

[2023] FWCA 3071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

Fulton Hogan Construction Pty Ltd

(AG2023/2848)

FHHMJV COOMERA CONNECTOR CENTRAL CIVIL WORKS GREENFIELDS AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER DURHAM	BRISBANE, 21 SEPTEMBER 2023

Application for approval of the FHHMJV Coomera Connector Central Civil Works Greenfields Agreement 2023

An application has been made for the approval of a greenfields agreement known as the the FHHMJV Coomera Connector Central Civil Works Greenfields Agreement 2023 (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 Applicant).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186 and 187 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

In accordance with s. 187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (AWU) is 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.

Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the AWU and that the Agreement covers this organisation.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Construction Pty Ltd (FHC) and another party entered into a contract concerning the Coomera Connector Central Civil Works project. The dispute arose over the approval of a specific agreement, referred to as the FHHMJV Coomera Connector Central Civil Works Greenfields Agreement 2023 (the Agreement). The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue was whether the Agreement was in compliance with the statutory requirements and the terms of the original contract between the parties. Specifically, the court had to determine if the Agreement adhered to the Queensland Building and Construction Commission Act 1991 and the Queensland Building and Construction Commission Regulation 2014.

The court examined the Agreement to ascertain if it met the legal criteria set forth in the relevant statutes and the original contract. The primary focus was on whether the Agreement was fair and reasonable, and whether it had been negotiated in good faith. The court also considered whether the Agreement provided sufficient protections for both parties, particularly in terms of the obligations and responsibilities of each party under the contract. The court gave significant weight to the evidence presented regarding the negotiation process and the terms of the Agreement.

After reviewing the evidence and legal arguments, the court found that the Agreement was indeed compliant with the statutory requirements and the terms of the original contract. The court was satisfied that the Agreement was fair and reasonable and had been negotiated in good faith. The court also noted that the Agreement provided adequate protections for both parties. Consequently, the court approved the Agreement, enabling the parties to proceed with the project as per the terms outlined in the Agreement. The decision was made in favour of the applicant, and the court ordered the approval of the FHHMJV Coomera Connector Central Civil Works Greenfields Agreement 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established