[2020] FWCA 3947

The attached document replaces the document previously issued with the above code on 29 July 2020

Correction of MNC on front page of decision. No other changes made

Member Assist for Deputy President Masson

Dated 29 July 2020

[2020] FWCA 3947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Fulton Hogan Quarries Pty Ltd T/A Fulton Hogan Quarries Pty Ltd
(AG2020/1998)

FULTON HOGAN NORTHERN REGION QUARRY DIVISION ENTERPRISE AGREEMENT 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 JULY 2020

Application for variation of the Fulton Hogan Northern Region Quarry Division Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Fulton Hogan Northern Region Quarry Division Enterprise Agreement 2017 (the Agreement). The application was made by Fulton Hogan Quarries Pty Ltd T/A Fulton Hogan Quarries Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on
28 November 2017. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 29 July 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fulton Hogan Quarries Pty Ltd T/A Fulton Hogan Quarries Pty Ltd applied to the Fair Work Commission for a variation of the Fulton Hogan Northern Region Quarry Division Enterprise Agreement 2017. The Fair Work Commission was tasked with determining whether the proposed changes to the enterprise agreement met the criteria for a variation under the Fair Work Act 2009. The application sought modifications to the existing agreement to better reflect the current economic climate and operational requirements of the company.

The primary legal issues before the Commission were whether the proposed changes were in the interests of the employees and whether they were necessary to address a significant change in circumstances. The Commission also had to consider whether the changes were consistent with the principles of good faith bargaining and whether they complied with the requirements of the Fair Work Act. Furthermore, the Commission needed to assess whether the application was made in good faith and whether there was sufficient evidence to support the claim of a significant change in circumstances.

The Fair Work Commission found that the application met the criteria for a variation under the Fair Work Act. The Commission was satisfied that the proposed changes were necessary to address a significant change in circumstances, specifically the economic downturn and increased operational costs. The Commission also concluded that the changes were in the interests of the employees, as they aimed to secure the long-term viability of the company and, consequently, the jobs of the employees. The Commission further determined that the application was made in good faith and that the changes were consistent with the principles of good faith bargaining. Therefore, the Commission granted the application and varied the enterprise agreement as sought by the company.

The final orders of the Commission were that the Fulton Hogan Northern Region Quarry Division Enterprise Agreement 2017 be varied as per the application, with the changes taking effect from the date of the decision. The varied agreement was to be registered with the Fair Work Commission, and the parties were required to take all necessary steps to give effect to the variation.

Fulton Hogan Quarries Pty Ltd T/A Fulton Hogan Quarries 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