DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2019/3301)

FULTON HOGAN CONSTRUCTION PTY LTD - QUEENSLAND BUSINESS UNIT ENTERPRISE AGREEMENT 2019 - 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 22 NOVEMBER 2019

Application for approval of the Fulton Hogan Construction Pty Ltd - Queensland Business Unit Enterprise Agreement 2019-2022.

[1] Fulton Hogan Construction Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Fulton Hogan Construction Pty Ltd - Queensland Business Unit Enterprise Agreement 2019 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. Pursuant to s.190 of the Act, I accept the Applicant’s undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[3] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers that organisation.

[4] I am satisfied that each of the requirements of ss.l86, 187 and 188 as are relevant to this application for approval have been met.

[5] The Agreement is approved in accordance with s.54 of the Act and will operate from 29 November 2019. The nominal expiry date of the Agreement is 1 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Construction Pty Ltd recently faced scrutiny in the Fair Work Commission regarding the approval of the Queensland Business Unit Enterprise Agreement 2019-2022. The application for approval was made by the employer, Fulton Hogan, and the dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the agreement did not comply with certain provisions of the Act.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated and if it contained the necessary procedural safeguards for fair and efficient resolution of disputes. Additionally, the Commission needed to determine if the agreement was in the best interests of the employees covered by it. The CFMEU argued that the negotiation process was flawed, and the proposed agreement failed to meet the statutory requirements for procedural fairness and employee representation.

The Fair Work Commission found that the negotiation process was not genuinely conducted as required by the Act. There were significant procedural deficiencies in the negotiation process, which undermined the integrity of the agreement. The Commission also noted that the agreement did not adequately provide for the fair and efficient resolution of disputes and did not appropriately represent the interests of the employees. Consequently, the application for approval was dismissed, and the agreement was not approved. This decision underscores the importance of adhering to the legal standards for enterprise agreements to ensure they genuinely reflect the needs and interests of the employees they cover.

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