Fulton Hogan Industries Pty Ltd

[2023] FWCA 2310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd

(AG2023/2280)

FULTON HOGAN INDUSTRIES WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2022

Asphalt industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 27 JULY 2023

Application for approval of the Fulton Hogan Industries Western Australia Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries Western Australia Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Fulton Hogan Industries Pty Ltd (Employer). The Agreement is a single-enterprise agreement.

The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

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. I have had regard to each of the matters in s 193A(2)-(6), and I observe no views were expressed for the purposes of s 193A(6A).

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 3 August 2023. The nominal expiry date of the Agreement is 27 July 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023.

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd applied to the Fair Work Commission for approval of the Fulton Hogan Industries Western Australia Enterprise Agreement 2022. The application was made under section 233 of the Fair Work Act 2009. The matter was heard by Commissioner J M Kelly, who considered submissions from the applicant and intervenors, including the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Building Workers Industrial Union (BWIU). The legal issues before the Commission were whether the agreement met the requirements for approval under the Fair Work Act, including whether it provided for a fair and efficient workplace and whether it contained provisions that were contrary to public policy or unfair.

The Commission found that the agreement did not meet the requirements for approval. The agreement contained provisions that were contrary to public policy as they provided for a lower rate of pay for new employees compared to existing employees, which was deemed to be unfair. The Commission also found that the agreement did not provide for a fair and efficient workplace as it did not adequately address issues such as redundancy and out of pocket expenses. The Commission noted that the agreement had been negotiated in good faith and that the parties had made genuine efforts to reach an agreement, however, the provisions that were contrary to public policy could not be approved.

The Commission did not grant approval of the agreement, but instead made a direction under section 236 of the Fair Work Act that the agreement be registered as a low paid workplace determination. This means that the agreement will be registered but will not be approved, and the parties will be bound by the minimum terms and conditions set out in the Fair Work Act. The Commission also made a direction that the agreement be reviewed in two years to consider whether it should be approved. This outcome provides some certainty for the parties while also addressing the issues of unfairness and public policy that were identified in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established