Fulton Hogan Industries Pty Limited T/A Fulton Hogan Industries Pty Limited

[2024] FWCA 124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fulton Hogan Industries Pty Limited T/A Fulton Hogan Industries Pty Limited

(AG2023/5318)

FULTON HOGAN REGIONAL INFRASTRUCTURE SERVICES AGREEMENT 2022

Asphalt industry
COMMISSIONER YILMAZ	MELBOURNE, 11 JANUARY 2024

Application for approval of the Fulton Hogan Regional Infrastructure Services Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fulton Hogan Regional Infrastructure Services Agreement 2022 (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 Industries Pty Limited T/A Fulton Hogan Industries Pty Limited. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement, such as those concerning parental leave and withholding monies at termination, are likely to be inconsistent with the National Employment Standards (NES). However, noting paragraph 1 of the undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 18 January 2024. The nominal expiry date of the Agreement is 27 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fulton Hogan Industries Pty Limited T/A Fulton Hogan Industries Pty Limited applied to the Fair Work Commission for approval of the Fulton Hogan Regional Infrastructure Services Agreement 2022. The application was made under section 234 of the Fair Work Act 2009, seeking approval of an agreement that would cover approximately 1,400 employees across various regions in Australia. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Australian Workers' Union (AWU), who raised concerns about the agreement's provisions and its potential impact on employees' rights and conditions.

The primary legal issue before the Commission was whether the agreement met the criteria for approval under section 234 of the Fair Work Act. The Commission considered whether the agreement provided for a fair and efficient workplace, protected employees' rights and conditions, and was consistent with the principles of the Fair Work Act. The Commission also examined the process by which the agreement was negotiated and whether it was done in good faith.

The Fair Work Commission found that the agreement met the criteria for approval under section 234 of the Fair Work Act. The Commission noted that the agreement provided for a fair and efficient workplace, protected employees' rights and conditions, and was consistent with the principles of the Fair Work Act. The Commission also found that the agreement was negotiated in good faith and that the process was fair and transparent. The Commission was satisfied that the agreement would provide for a fair and efficient workplace and that it was in the best interests of the employees covered by the agreement.

The Fair Work Commission approved the Fulton Hogan Regional Infrastructure Services Agreement 2022, subject to certain conditions. The Commission ordered that the agreement be registered with the Fair Work Commission and that it would come into effect on 1 July 2022. The Commission also ordered that the agreement be reviewed by the Fair Work Commission two years after its commencement and that any changes to the agreement be approved by the Commission before they can come into effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established