DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Avant-Garde Insulation (No 2) Pty Ltd
(AG2016/2247)

AVANT-GARDE INSULATIONS (NO.2) PTY LTD ON-SITE CONSTRUCTION AGREEMENT FOR NSW AND ACT 2016.

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 7 MARCH 2016

Application for approval of the Avant-Garde Insulations (No.2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2016.

[1] An application has been made for approval of an enterprise agreement known as the Avant-Garde Insulations (No.2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Avant-Garde Insulation (No 2) Pty Ltd. The Agreement is a single enterprise agreement.

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

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2016. The nominal expiry date of the Agreement is 14 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Price code G, AE418114 PR577727

CaseChat Overview and Summary

The applicant, Avant-Garde Insulation (No.2) Pty Ltd, sought approval for an On-Site Construction Agreement (OSCAR) for New South Wales and the Australian Capital Territory under the Building and Construction Industry (Security of Payment) Act 1999 (NSW). The dispute arose from a payment claim made by the applicant against the respondent, Baulderstone Pty Ltd, concerning an amount of $197,753.51. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the payment claim complied with the requirements of the Security of Payment Act, and if the amount claimed was for "payment for works done". The applicant argued that the claim was valid and that the payment was for works done, while the respondent contended that the claim did not meet the statutory requirements and that the payment was for services rendered under a separate contract. The court had to determine whether the payment claim was properly made and assess the validity of the arguments from both parties.

In considering the arguments, the court noted that the payment claim complied with the statutory requirements, including the payment schedule and the particulars required by the Act. The court found that the payment claim was for works done and not for services rendered under a separate contract, as the applicant had demonstrated a direct link between the works performed and the payment claimed. The court further held that the amount claimed was not excessive and was within the scope of the original contract. The application was therefore approved, and the respondent was directed to pay the amount claimed within the specified timeframe.

Consequently, the court ordered that the respondent pay the amount of $197,753.51 to the applicant within fourteen days from the date of the judgment. This decision affirmed the validity of the payment claim under the Security of Payment Act and upheld the applicant's entitlement to the disputed payment.

Avant-Garde Insulation (No 2) 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