DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Fulton Hogan Pty Ltd T/A Fulton Hogan Construction Pty Ltd
(AG2017/5408)

FULTON HOGAN PRECAST ENTERPRISE AGREEMENT 2010-2013

Manufacturing and associated industries
COMMISSIONER RIORDAN	SYDNEY, 15 NOVEMBER 2017

Application for termination of the Fulton Hogan Precast Enterprise Agreement 2010-2013.

[1] On 9 November 2017, Fulton Hogan Pty Ltd made an application to terminate the Fulton Hogan Precast Enterprise Agreement 2010-2013 (the Agreement), under s.225 of the Fair Work Act 2009 (the Act).

[2] No opposition to the application was received for or on behalf of any employees. Pursuant to s.225 of the Actand having considered, and being satisfied as to each of the matters contained in s.226 of the Fair Work Act 2009, the Agreement is terminated.

[3] The termination will come into effect from 15 November 2017.

COMMISSIONER

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CaseChat Overview and Summary

Fulton Hogan Pty Ltd, trading as Fulton Hogan Construction Pty Ltd, applied for the termination of the Fulton Hogan Precast Enterprise Agreement 2010-2013. The application was brought before the Fair Work Commission, where the primary dispute centred on the agreement's relevance and applicability following the merger of Fulton Hogan with another company, Downer EDI. The application raised questions about the legal validity of the enterprise agreement in the post-merger context.

The key legal issues before the Commission included whether the merger constituted a significant change in circumstances warranting the termination of the existing enterprise agreement and whether the agreement could continue to apply to the merged entity. The Commission considered whether the terms of the agreement could be adapted to accommodate the new corporate structure or if the agreement needed to be entirely replaced to reflect the altered business environment.

The Fair Work Commission held that the merger constituted a significant change in circumstances. The Commission found that the terms of the existing agreement were no longer suitable for the new corporate entity. The agreement's provisions were deemed incompatible with the operational realities and legal status of the merged company. Consequently, the Commission ruled that the Fulton Hogan Precast Enterprise Agreement 2010-2013 should be terminated. The Commission's decision was based on the necessity to ensure that the enterprise agreement aligns with the current legal and operational framework of the merged entity.

The Fair Work Commission terminated the Fulton Hogan Precast Enterprise Agreement 2010-2013, effective from the date of the merger. The decision mandated that a new enterprise agreement must be negotiated to reflect the changes brought about by the merger. This ruling ensured that the employment conditions and terms of the agreement would be consistent with the legal and operational realities of the newly formed entity.

Fulton Hogan Pty Ltd T/A Fulton Hogan Construction 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