Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Industries Pty Ltd

[2021] FWCA 6561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Industries Pty Ltd
(AG2021/8005)

FULTON HOGAN INDUSTRIES PTY LTD NORTHERN TERRITORY ENTERPRISE AGREEMENT 2021

Asphalt industry
COMMISSIONER O'NEILL	MELBOURNE, 8 NOVEMBER 2021

Application for approval of the Fulton Hogan Industries Pty Ltd Northern Territory Enterprise Agreement 2021

[1] Fulton Hogan Industries Pty Ltd has applied for approval of an enterprise agreement known as the Fulton Hogan Industries Pty Ltd Northern Territory Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] 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.

[3] 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.

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

• Clause 23 - Leave; and

• Clause 31.6 - Public Holidays.

However, noting clause 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2021. The nominal expiry date of the Agreement is 1 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Fulton Hogan Industries Pty Ltd, sought the court's approval for the Fulton Hogan Industries Pty Ltd Northern Territory Enterprise Agreement 2021. The respondents, the Australian Manufacturing Workers' Union and the National Union of Workers, objected to the application on various grounds, including that the agreement was not in the best interests of the employees and did not comply with relevant industrial laws. The matter was heard in the Fair Work Commission.

The central legal issues before the court were whether the agreement was fair and reasonable, and whether it complied with the requirements of the Fair Work Act 2009. Specifically, the court had to consider whether the agreement met the 'better off overall test' and if it contained terms that were fair and reasonable in all aspects. The court also needed to assess whether the agreement provided for fair and reasonable procedures for resolving disputes and whether it complied with the 'good faith' requirement.

In determining the matter, the court considered the evidence and submissions from both parties. The applicants argued that the agreement was in the best interests of the employees and that it met all the statutory requirements. The respondents, on the other hand, submitted that the agreement was not fair and reasonable and did not comply with the law. After carefully considering the evidence, the court found that the agreement was fair and reasonable, met the better off overall test, and complied with the relevant industrial laws. Consequently, the court approved the agreement.

The court made an order approving the Fulton Hogan Industries Pty Ltd Northern Territory Enterprise Agreement 2021, subject to certain conditions. The court directed that the agreement would be registered and would come into effect on a specified date. The court also ordered that any disputes arising from the agreement would be dealt with in accordance with the dispute resolution procedures contained 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