Fulton Hogan Industries Pty Ltd

[2022] FWCA 4189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd

(AG2022/4793)

Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2022 (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.

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 Construction, Forestry, Maritime, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2022. The nominal expiry date of the Agreement is 7 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd sought approval of their enterprise agreement, the Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2022, under section 234 of the Fair Work Act 2009. The applicant argued that the agreement was appropriate for the Fair Work Commission to make, as it complied with the requirements of the Act and was free from any flaws that would render it invalid. The Australian Building and Construction Commission, a party to the agreement, did not oppose the application but submitted that there were issues with the agreement's operation.

The legal issues before the court involved whether the agreement was appropriately made, met the requirements of the Fair Work Act, and was free from any defects. The court had to determine whether the agreement was made in accordance with the provisions of the Act, including whether it complied with the good faith bargaining requirements, whether it was made free from any improper influence or coercion, and whether it contained terms that were unfair or unjust. The court also had to consider whether the agreement was appropriately made in light of the parties' bargaining power and whether it was in the best interests of the employees covered by the agreement.

The court found that the agreement was appropriately made and met the requirements of the Fair Work Act. The court noted that the agreement had been negotiated in good faith and was free from any improper influence or coercion. The court also found that the agreement contained terms that were fair and just and were in the best interests of the employees covered by the agreement. The court held that the agreement was appropriately made in light of the parties' bargaining power and was in the best interests of the employees. The court approved the agreement and made orders to that effect.

The court's final orders included approval of the Fulton Hogan Industries Pty Ltd Port Phillip Enterprise Agreement 2022, with the agreement to be registered by the Fair Work Commission. The court also ordered that the agreement be published on the Fair Work Commission's website and that the applicant provide a copy of the agreement to the Australian Building and Construction Commission. The court's decision provides clarity on the requirements for approving enterprise agreements and the considerations that the court will take into account when making such a decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established