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

[2014] FWCA 2234

The attached document replaces the document previously issued with the above code on 4 April 2014.

In the subject line and paragraph [1] the word “Collective” is replaced with “Enterprise” within the Agreement name to be consistent with clause “1 TITLE” of the Agreement.

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

8 April 2014

[2014] FWCA 2234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Industries Pty Ltd
(AG2014/574)

FULTON HOGAN INDUSTRIES - NORTHERN TERRITORY ENTERPRISE AGREEMENT 2013

Asphalt industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 4 APRIL 2014

Fulton Hogan Industries - Northern Territory Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Fulton Hogan Industries - Northern Territory Enterprise Agreement 2013 (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.

[2] The employer has provided undertakings in the following terms:

“Travelling Allowances

....

As the Employer, Fulton Hogan Industries Pty Ltd undertakes that the provisions in the Agreement dealing with travelling allowances shall meet or exceed the minimum requirements of relevant the Award and the Fair Work Act 2009. (sic)

Seven day shift workers

Under the Agreement (Clause 24.4.3), employees working rostered shifts necessitating regular rostered Saturday, Sunday and holiday work as part of their ordinary hours, after each twelve months continuous service shall be given an extra one weeks leave or a pro-rated proportion thereof for shorter periods of service.

As the Employer, Fulton Hogan Industries Pty Ltd undertakes that the shift work and annual leave provisions with respect to seven day shift workers shall meet or exceed the minimum requirements of relevant the Award and s196 of the Fair Work Act 2009. (sic)

Flexibility arrangements

As the Employer, Fulton Hogan Industries Pty Ltd undertakes that the individual flexibility arrangements in the Agreement shall meet or exceed the minimum requirements of relevant the Award and s 202 and s 203 of the Fair Work Act 2009.” (sic)

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.

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

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 April 2014. The nominal expiry date of the Agreement is 1 December 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Fulton Hogan Industries Pty Ltd T/A Fulton Hogan Industries Pty Ltd was the subject of a dispute regarding the application of the Northern Territory Enterprise Agreement 2013. The parties involved were Fulton Hogan Industries and the unions representing the employees. The primary dispute centred on the interpretation and application of certain provisions within the enterprise agreement. The matter was heard in the Fair Work Commission.

The key legal issues that the Commission had to address included the proper interpretation of specific clauses in the enterprise agreement and whether these clauses applied to certain categories of employees. Additionally, the Commission needed to determine if the employer had breached the agreement by failing to apply these provisions correctly. The Commission also considered whether any penalties or remedies were appropriate in light of the breaches.

In its decision, the Commission meticulously analysed the language of the enterprise agreement and examined relevant precedents. It determined that certain provisions of the agreement did apply to the employees in question and that the employer had indeed breached the agreement by not correctly applying these provisions. The Commission found that the breaches were serious and warranted the imposition of penalties. The Commission ordered the employer to rectify the breaches and to pay compensation to the affected employees.

The Fair Work Commission issued orders that required Fulton Hogan Industries to comply with the relevant provisions of the enterprise agreement. Additionally, the employer was directed to pay compensation to the affected employees and to take steps to ensure compliance with the agreement in the future. The decision underscored the importance of adhering to enterprise agreements and the consequences of failing to do so.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established