Fulton Hogan Industries Pty Ltd

[2022] FWCA 645

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd

(AG2021/9339)

Fulton Hogan Industries NSW Roads Maintenance Enterprise Agreement 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2022

Application for approval of the Fulton Hogan Industries NSW Roads Maintenance Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries NSW Roads Maintenance Enterprise Agreement 2021 (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.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 9.2.2 – Personal/Carer’s Leave.
·   Clause 9.7.4 – Public Holidays.
·   Clause 10.2 – Termination.

However, noting clause 1.3.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2022. The nominal expiry date of the Agreement is 23 February 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd was the subject of an application for the approval of the Fulton Hogan Industries NSW Roads Maintenance Enterprise Agreement 2021. The applicant, Fulton Hogan Industries, sought approval of the agreement from the Fair Work Commission. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, did not oppose the application but raised concerns about certain aspects of the agreement. The case was heard by the Fair Work Commission.

The legal issues before the Fair Work Commission included whether the agreement provided for the fair and efficient resolution of workplace disputes, whether it met the requirements of the Fair Work Act, and whether it adequately addressed the needs of both the employer and employees. The Commission had to consider whether the agreement provided for a fair and efficient system for resolving workplace disputes and if it met the requirements of the Fair Work Act. The Commission also needed to determine if the agreement adequately addressed the needs of both the employer and employees.

The Fair Work Commission found that the agreement provided for a fair and efficient system for resolving workplace disputes, met the requirements of the Fair Work Act, and adequately addressed the needs of both the employer and employees. The Commission noted that the agreement included provisions for the resolution of workplace disputes, including a conciliation and arbitration process, which provided a fair and efficient means of resolving disputes. The Commission also found that the agreement met the requirements of the Fair Work Act, including the requirement for the agreement to provide for the fair and efficient resolution of workplace disputes and to address the needs of both the employer and employees. The Commission concluded that the agreement adequately addressed the needs of both the employer and employees, including provisions for wages, hours of work, and other conditions of employment.

The Fair Work Commission approved the Fulton Hogan Industries NSW Roads Maintenance Enterprise Agreement 2021. The Commission found that the agreement provided for a fair and efficient system for resolving workplace disputes, met the requirements of the Fair Work Act, and adequately addressed the needs of both the employer and employees. The Commission's approval of the agreement ensures that it will be legally binding on both the employer and employees and provides a framework for the fair and efficient resolution of any workplace disputes that may arise.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established