DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd
(AG2015/7156)

FULTON HOGAN INDUSTRIES PTY LTD (54 000 538 689) NSW STATE COLLECTIVE AGREEMENT 2015

Asphalt industry
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2016

Application for approval of the Fulton Hogan Industries Pty Ltd (54 000 538 689) NSW State Collective Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries Pty Ltd (54 000 538 689) NSW State Collective Agreement 2015 (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 Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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] Subject to the undertakings referred to above, 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement was approved on 23 February 2016 and, in accordance with s.54, will operate from 1 March 2016. The nominal expiry date of the Agreement is 22 February 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd sought approval of the NSW State Collective Agreement 2015. The application was made under the Fair Work Act 2009, specifically section 233, which requires that an agreement must be "certified" by the Fair Work Commission before it can be registered with the Australian Industrial Relations Commission. The application was made to the Fair Work Commission, which has the power to approve collective agreements if it considers they meet the requirements of the Act.

The central legal issue before the court was whether the NSW State Collective Agreement 2015 met the requirements of the Fair Work Act 2009. The applicant needed to demonstrate that the agreement was made in good faith and that it provided for the terms and conditions of employment of the employees covered by the agreement. The applicant also had to show that the agreement met the "better off overall test", meaning that the employees would be better off overall under the agreement than they would be without it.

The Fair Work Commission found that the NSW State Collective Agreement 2015 met the requirements of the Fair Work Act 2009. The Commission noted that the agreement had been made in good faith and that it provided for the terms and conditions of employment of the employees covered by the agreement. The Commission also found that the agreement met the "better off overall test", as the employees would be better off overall under the agreement than they would be without it. The Commission approved the agreement, and it was registered with the Australian Industrial Relations Commission.

The Fair Work Commission approved the NSW State Collective Agreement 2015 and ordered that it be registered with the Australian Industrial Relations Commission. The agreement provides for the terms and conditions of employment of the employees covered by the agreement and meets the requirements of the Fair Work Act 2009. The agreement also meets the "better off overall test" and will provide benefits to the employees. The Commission's decision is final and binding, and the agreement is now in effect.

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