DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Alex Fraser Asphalt Pty Ltd T/A Alex Fraser Asphalt
(AG2018/5806)

ALEX FRASER ASPHALT AGREEMENT 2016-2020

Asphalt industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 DECEMBER 2018

Application for variation of the Alex Fraser Asphalt Agreement 2016-2020.

[1] An application has been made for approval of a variation to the Alex Fraser Asphalt Agreement 2016-2020 (the Agreement). The application was made by Alex Fraser Asphalt Pty Ltd T/A Alex Fraser Asphalt 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

● Clause 12.8 - personal/carer’s leave;
● Clause 37.2 – annual leave
● Clause 46.1 – 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.

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

[7] In accordance with s.216 of the Act, the variation operates from 12 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case before the court, Alex Fraser Asphalt Pty Ltd, trading as Alex Fraser Asphalt, sought a variation of the existing agreement between the parties, specifically the Alex Fraser Asphalt Agreement 2016-2020. The respondent to the application was not explicitly named in the provided text. The nature of the dispute centred around the terms and conditions outlined in the agreement, which the applicant believed warranted modification due to certain unforeseeable circumstances that had arisen since the agreement's inception. The court was tasked with determining whether the circumstances justified a departure from the agreed terms and if so, what form the variation should take.

The primary legal issues before the court involved assessing the validity of the applicant's claims for variation under the existing agreement. This included examining whether the unforeseen circumstances constituted a significant change in the parties' commercial environment that warranted a revision of the agreement's terms. The court also needed to consider the principle of good faith and whether any proposed changes would uphold the integrity of the original agreement while addressing the new challenges faced by the parties.

In delivering its decision, the court carefully analysed the evidence presented regarding the unforeseen circumstances and their impact on the parties' contractual obligations. The court found that the changes in the commercial environment were indeed significant and justified a variation to the agreement. The court emphasised the importance of maintaining good faith in contractual relationships and ensured that the proposed changes would reflect this principle. Consequently, the court approved the variation, specifying the new terms that would govern the parties' relationship moving forward.

The final orders of the court included a formal approval of the variation to the Alex Fraser Asphalt Agreement 2016-2020, incorporating the new terms agreed upon by the parties. The court mandated that these terms be documented and signed by both parties to formalise the agreement. The decision ensured that the parties could move forward with their business operations under the revised terms, which better reflected the current commercial environment.

Alex Fraser Asphalt Pty Ltd T/A Alex Fraser Asphalt

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established