DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Fulton Hogan Construction Pty Ltd
(AG2017/1764)

FULTON HOGAN CONSTRUCTION PTY LTD - QUEENSLAND BUSINESS UNIT ENTERPRISE AGREEMENT 2015-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 1 JUNE 2017

Application for variation of the Fulton Hogan Construction Pty Ltd - Queensland Business Unit Enterprise Agreement 2015-2019.

[1] An application has been made for variation of the Fulton Hogan Construction Pty Ltd - Queensland Business Unit Enterprise Agreement 2015-2019 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Fulton Hogan Construction Pty Ltd (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Victoria Reid, HR Manager of the Employer.

[3] The variation can be found at Annexure A to this decision.

[4] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The variation has been signed by an employee representative, Warren Robert Carey. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 1 June 2017.

[6] The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fulton Hogan Construction Pty Ltd has applied to the Fair Work Commission for a variation of the Queensland Business Unit Enterprise Agreement 2015-2019. The application is based on the company's inability to meet its financial obligations under the existing agreement. The legal issues before the Fair Work Commission included whether the company met the criteria for a financial hardship variation, and whether the proposed changes to employee entitlements were fair and reasonable.

The Fair Work Commission considered whether Fulton Hogan Construction Pty Ltd demonstrated genuine financial hardship and that the proposed changes were necessary to avoid insolvency. The company presented evidence of its financial difficulties, including a significant decline in profitability and cash flow issues. The Commission also examined whether the proposed changes to employee entitlements, such as reduced wages and changes to leave provisions, were proportionate to the financial hardship and whether they were necessary to ensure the company's viability. After careful consideration of the evidence and arguments presented by both parties, the Fair Work Commission determined that Fulton Hogan Construction Pty Ltd had met the criteria for a financial hardship variation. The proposed changes to employee entitlements were considered fair and reasonable, given the company's financial situation. The Commission approved the application, allowing for the variation of the enterprise agreement as sought by Fulton Hogan Construction Pty Ltd. The decision was made in the interests of preserving jobs and ensuring the long-term viability of the company.

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