DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2021/5495)

FULTON HOGAN PTY LTD MINOR CONSTRUCTION - PIPELINES & SUBDIVISIONS ENTERPRISE AGREEMENT 2021

Building services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 23 JUNE 2021

Application for approval of the Fulton Hogan Pty Ltd Minor Construction - Pipelines & Subdivisions Enterprise Agreement 2021.

[1] Fulton Hogan Construction Pty Ltd has applied for approval of a single enterprise agreement known as the Fulton Hogan Pty Ltd Minor Construction - Pipelines & Subdivisions Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b).

[3] Since the application was made, the Commission inquired about whether the pre-approval requirements were met, whether the Agreement contravenes s.55 of the Act and the appropriate classification matching for the purposes of conducting the “better off overall test” assessment. Further information was provided in relation to these concerns.

[4] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The employee bargaining representatives did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

[5] Noting the Undertaking, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Agreement was approved on 23 June 2021 and, in accordance with s.54, will operate from 30 June 2021. The nominal expiry date of the Agreement is 1 September 2023.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Annexure A

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Construction Pty Ltd applied for the approval of the Fulton Hogan Pty Ltd Minor Construction – Pipelines & Subdivisions Enterprise Agreement 2021. The application was heard by the Fair Work Commission, which exercises federal jurisdiction in relation to workplace relations and enterprise agreements under the Fair Work Act 2009. The applicant sought to have the agreement registered on the Register of Approved Agreements, with effect from 1 March 2021. The applicant argued that the agreement satisfied the requirements of the Fair Work Act, including the "better off overall test", which requires that employees be no worse off financially and have at least the same conditions as under their previous agreement or the applicable award.

The legal issues for the Commission to decide included whether the agreement met the requirements of the Fair Work Act, including the "better off overall test". The Commission also had to consider whether the agreement had been made in accordance with the procedural requirements of the Act, including the requirement for genuine bargaining. The Commission examined the evidence and submissions from both parties and considered the relevant legal principles and authorities. The Commission was satisfied that the agreement met the requirements of the Fair Work Act and was therefore approved.

The Fair Work Commission approved the application and registered the Fulton Hogan Pty Ltd Minor Construction – Pipelines & Subdivisions Enterprise Agreement 2021 on the Register of Approved Agreements. The Commission found that the agreement satisfied the "better off overall test" and had been made in accordance with the procedural requirements of the Act, including genuine bargaining. The Commission also noted that the agreement provided for a range of benefits for employees, including wage increases and improved conditions. The approval of the agreement means that it will now apply to the relevant employees and employers from 1 March 2021.

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