DECISION

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

Fulton Hogan Industries Pty Ltd
(AG2015/2122)

FULTON HOGAN INDUSTRIES PTY LTD PORT PHILLIP ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 17 MARCH 2015

Application for approval of the Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2014 (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 (Fulton Hogan). The agreement is a single-enterprise agreement.

[2] An employer statutory declaration in support of the application (Form F17) was filed by Mr B Jolly on behalf of Fulton Hogan. The statutory declaration states that the model Flexibility and Consultation terms are to apply.

[3] As the Agreement does not contain a flexibility provision in the terms of s.202 of the Act. 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.

[4] The Agreement also does not contain a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act. Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[5] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[7] The Construction, Forestry, Mining and Energy 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.

[8] The Agreement is approved and, in accordance with s.54, will operate from 24 March 2015. The nominal expiry date of the Agreement is 8 September 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by Fulton Hogan Industries Pty Ltd to have their 2014 Port Phillip Enterprise Agreement approved. The Fair Work Commission (FWC) was the forum for this application. The applicant, a construction company, sought to have the agreement registered under the Fair Work Act 2009 to ensure it was legally binding on their employees. The application faced opposition from various unions and employee representatives who raised concerns about the agreement's provisions.

The central legal issue before the FWC was whether the 2014 Port Phillip Enterprise Agreement met the statutory requirements for approval and registration under the Fair Work Act. The opposition primarily contested the agreement's provisions related to pay rates, classification of employees, and the process for resolving workplace disputes. The FWC had to determine if the agreement provided fair and reasonable terms and conditions of employment and if it had been genuinely negotiated between the employer and the relevant employee representatives.

The FWC conducted a thorough examination of the agreement, considering submissions from both Fulton Hogan Industries and the opposing parties. The Commission assessed whether the agreement satisfied the 'better off overall test', which requires that employees are not worse off financially under the new agreement. The FWC found that the agreement, while not perfect, provided for fair and reasonable terms overall and had been genuinely negotiated. The Commission approved the agreement, noting that while some provisions could be improved, the benefits of registration outweighed the detriments. The FWC's decision was grounded in the need to balance the interests of the employer and employees, ensuring that the agreement was a fair compromise that advanced the economic, productivity, and employment-related objectives of the Act.

The FWC ordered the registration of the Fulton Hogan Industries Pty Ltd 2014 Port Phillip Enterprise Agreement, effective from the date of the decision. This registration meant that the agreement became a legally binding document between the employer and the employees covered by the agreement. The decision underscored the importance of fair negotiation and the overall benefit to employees as key criteria for approving enterprise agreements.

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