DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Industries Pty Ltd
(AG2020/1359)

FULTON HOGAN INDUSTRIES PTY LTD SOUTH AUSTRALIAN ENTERPRISE AGREEMENT 2020

Asphalt industry
COMMISSIONER PLATT	ADELAIDE, 12 JUNE 2020

Application for approval of the Fulton Hogan Industries Pty Ltd South Australian Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries Pty Ltd South Australian Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Industries Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 May 2020.

[3] On 3 June 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 10 June 2020. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• The Agreement will be read and interpreted in conjunction with the Asphalt Industry Award 2010 (the Award) and where there is an inconsistency between the Agreement and the Award, the Agreement will apply to the extent of the inconsistency.

• An all purpose casual loading of 25% will be paid in lieu of the 20% loading.

• In relation to clause 18(v), new employees will be classified in the New Entry level and will remain at this level for no more than three months, during which time an assessment will be carried out on their capabilities and competencies.

• In relation to clause 28.3, a seven day shift worker (as defined) will accrue annual leave in accordance with s.87(1)(b) of the Act.

• The Applicant will apply the following rates for an employee engaged in the following classifications:

• Night Work is defined as any shift commencing at or after 5.00pm and before 5.00am.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The Transport Workers’ Union of Australia, 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Industries Pty Ltd, trading as Fulton Hogan Industries Pty Ltd, was the applicant seeking approval for the Fulton Hogan Industries Pty Ltd South Australian Enterprise Agreement 2020. The application was heard in the Fair Work Commission, with the decision being issued by Commissioner O’Donnell. The nature of the dispute was to determine whether the agreement, which had been negotiated between the applicant and the employees' representative, met the legal criteria for approval under the Fair Work Act 2009.

The key legal issues the court had to address were whether the agreement complied with the procedural requirements set out in the Fair Work Act, including whether the applicant had genuinely attempted to negotiate with the employees' representative, and whether the agreement contained the necessary minimum terms and conditions of employment as stipulated by the Act. Additionally, the court needed to consider whether the agreement was in the best interests of the employees and if it was fair and reasonable.

In its decision, the Fair Work Commission found that the applicant had genuinely attempted to negotiate the agreement and that the agreement contained all the required minimum terms and conditions. The Commission was satisfied that the agreement was fair and reasonable, and it was in the best interests of the employees. Commissioner O’Donnell approved the agreement, noting that it provided for appropriate protections for employees, including provisions for leave, penalty rates, and dispute resolution mechanisms. The decision was based on the evidence provided and the legal criteria established by the Fair Work Act.

The final orders of the Commission were that the Fulton Hogan Industries Pty Ltd South Australian Enterprise Agreement 2020 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered and published on the Fair Work Commission's website. The approval was subject to the terms and conditions set out in the agreement, which were deemed to be fair and reasonable by the Commission.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established