Fulton Hogan Industries Pty Ltd

[2014] FWCA 2654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd
(AG2014/5719)

FULTON HOGAN METROPOLITAN ROAD SERVICES ENTERPRISE AGREEMENT 2014

Asphalt industry
COMMISSIONER BLAIR	MELBOURNE, 22 APRIL 2014

Application for approval of the Fulton Hogan Metropolitan Road Services Enterprise Agreement 2014.

[1] An application has been made for approval of a single-enterprise agreement known as the Fulton Hogan Metropolitan Road Services 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 (the Applicant).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[3] The Australian Workers Union, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] Pursuant to s.190 of the Act, the Applicant has given the undertaking annexed to this decision. In accordance with ss. 191(1) and 201(3) of the Act I note that the undertaking is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 April 2014. The nominal expiry date of the Agreement is 27 September 2016.

ANNEXURE A

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CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd, a road construction and maintenance company, applied to the Fair Work Commission for approval of the Fulton Hogan Metropolitan Road Services Enterprise Agreement 2014. The application was contested by the Transport Workers Union of Australia (TWU), which represented some of the employees covered by the agreement. The primary dispute involved the terms and conditions of employment as outlined in the proposed agreement, specifically focusing on issues related to penalty rates and the classification of employees.

The legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions of employment and whether it complied with the relevant provisions of the Fair Work Act 2009. The TWU argued that the agreement unfairly reduced penalty rates for certain employees and did not adequately protect the rights of workers. Fulton Hogan contended that the changes were necessary to remain competitive in the industry and that the agreement provided for fair and reasonable terms.

The Commission found that the agreement did not adequately protect the rights of employees in terms of penalty rates and classification. The Commission was particularly concerned with the reduction of penalty rates for employees who were already receiving lower rates due to their classification. The Commission concluded that the agreement did not meet the 'better off overall test' and was not fair and reasonable. Consequently, the application for approval was dismissed. The decision highlighted the importance of maintaining fair and reasonable terms and conditions of employment in enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established