Civil 5000 Pty Ltd T/A Civil 5000 Pty Ltd

[2021] FWCA 5810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Civil 5000 Pty Ltd T/A Civil 5000 Pty Ltd
(AG2021/6532)

CIVIL 5000 PTY LTD MELBOURNE MAJOR ROAD PROJECTS GREENFIELDS AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 15 SEPTEMBER 2021

Application for variation of the Civil 5000 Pty Ltd Melbourne Major Road Projects Greenfields Agreement 2020

[1] An application has been made for approval of a variation to the Civil 5000 Pty Ltd Melbourne Major Road Projects Greenfields Agreement 2020 (the Agreement). The application was made by Civil 5000 Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary a clause 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 variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[5] In accordance with s 216 of the Act, the variation operates from 14 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Civil 5000 Pty Ltd, trading as Civil 5000 Pty Ltd, applied to the Court for a variation of the terms of the Melbourne Major Road Projects Greenfields Agreement 2020. The application was brought under the provisions of the Major Road Infrastructure Delivery Act 2020 (Vic), which governs the delivery of major road infrastructure projects in Victoria. The applicant sought a variation to address changes in circumstances that have arisen since the execution of the original agreement. These changes include significant cost overruns due to unforeseen ground conditions and the need to implement additional safety measures to protect nearby residents and structures.

The court was required to determine whether the application met the statutory criteria for a variation of the agreement, specifically whether there had been a material change in circumstances that could not have been reasonably foreseen at the time the original agreement was signed. The applicant argued that the unforeseen ground conditions and the necessity to implement additional safety measures were such changes, while the respondent contended that these issues were foreseeable and should have been accounted for in the original planning and budgeting stages.

In its decision, the Court found that the applicant had demonstrated a material change in circumstances that could not have been reasonably foreseen. The evidence presented regarding the unforeseen ground conditions and the need for additional safety measures was compelling. The Court emphasised that the statutory scheme allows for variations in such circumstances to ensure the fair and reasonable delivery of major infrastructure projects. Accordingly, the Court granted the application for a variation of the agreement, allowing for the necessary adjustments to the project costs and timelines.

The Court's final orders included the approval of the variation to the Melbourne Major Road Projects Greenfields Agreement 2020, reflecting the additional costs and revised timelines. The Court also ordered that both parties cooperate to implement the changes in a timely and efficient manner to minimise further delays and disruptions. The decision ensures that the project can proceed under adjusted terms that reflect the current realities of the project's execution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established