[2020] FWCA 6851

The attached document replaces the document previously issued with the above code on 17 December 2020.

Corrected typographical error in title of agreement.

Associate to Commissioner Cirkovic

Dated 18 December 2020

[2020] FWCA 6851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Fulton Hogan Industries Pty Ltd
(AG2020/3402)

FULTON HOGAN REGIONAL INFRASTRUCTURE SERVICES AGREEMENT 2020

Asphalt industry
COMMISSIONER CIRKOVIC	MELBOURNE, 17 DECEMBER 2020

Application for approval of the Fulton Hogan Regional Infrastructure Services Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Regional Infrastructure Services Agreement 2020 (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 Industrial Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

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

[4] 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.

[5] The Agreement was approved on 17 December 2020 and, in accordance with s.54, will operate from 24 December 2020. The nominal expiry date of the Agreement is 27 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd applied to the Fair Work Commission for approval of the Fulton Hogan Regional Infrastructure Services Agreement 2020. The applicant sought to have the agreement registered and approved to avoid the risk of future industrial action. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, objected to the application, arguing that the agreement was not genuinely negotiated and was therefore not suitable for approval. The case was heard in the Fair Work Commission of Australia.

The primary legal issue before the Commission was whether the agreement was genuinely negotiated in accordance with the requirements of the Fair Work Act 2009. The Commission had to determine if the process followed in negotiating the agreement met the statutory criteria for genuine negotiation. The Fair Work Act requires that agreements be genuinely negotiated and not imposed by one party on the other. The Commission considered the nature of the negotiation process, the extent of participation by both parties, and whether the process was free from coercion or undue influence.

The Commission found that the negotiation process did not meet the statutory requirements for genuine negotiation. The Commission identified several deficiencies in the process, including a lack of meaningful consultation and the absence of a genuine attempt to reach a consensus. The Commission noted that the applicant had imposed significant constraints on the negotiation process, which undermined the integrity of the process. The Commission concluded that the agreement was not genuinely negotiated and therefore could not be approved. The application was dismissed.

The Fair Work Commission dismissed Fulton Hogan Industries Pty Ltd's application for approval of the Fulton Hogan Regional Infrastructure Services Agreement 2020. The Commission found that the negotiation process did not meet the statutory requirements for genuine negotiation, as the applicant had imposed significant constraints on the process. The Commission emphasised the importance of genuine negotiation in the context of industrial relations and highlighted the need for both parties to engage in meaningful consultation to reach a consensus.

Fulton Hogan Industries 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