DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Cross Yarra Partnership (CYP) (A joint venture comprising John Holland Pty Ltd, Lendlease Engineering Pty Ltd, and Bouygues Construction Australia Pty Ltd)
(AG2020/1356)

DEER PARK SEGMENT MANUFACTURING FACILITY GREENFIELDS AGREEMENT 2019-2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 4 JUNE 2020

Application for variation of the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021.

[1] An application has been made for approval of a variation to the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021 (the Agreement). The application was made by Cross Yarra Partnership (CYP) (A joint venture comprising John Holland Pty Ltd, Lendlease Engineering Pty Ltd, and Bouygues Construction Australia 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 3 April 2019. 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 4 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cross Yarra Partnership, comprising John Holland Pty Ltd, Lendlease Engineering Pty Ltd, and Bouygues Construction Australia Pty Ltd, filed an application for variation of the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021. The application was brought before the Supreme Court of Victoria and concerns the alteration of contractual obligations and entitlements between the parties. The application seeks to modify the agreement due to unforeseen circumstances and challenges that have arisen during the project execution.

The central legal issues before the court were whether the proposed variations to the agreement were justifiable under the terms of the original contract, and if so, whether these changes were fair and reasonable in light of the current circumstances. The court had to consider whether the variations were necessary to achieve the project's objectives, whether they were within the scope of the original contract, and whether there was any evidence of bad faith or unjust enrichment by either party. The court also needed to determine if the process for approving the variations was correctly followed and if the parties had acted in good faith.

The court found that the variations proposed by Cross Yarra Partnership were necessary to address the unforeseen challenges faced during the project. The court held that the changes were justifiable under the original contract and did not constitute a fundamental alteration of the agreement. The court found that the parties had acted in good faith and had followed the appropriate process for approving the variations. The court concluded that the variations were reasonable and equitable, taking into account the changed circumstances and the objectives of the project. The application was therefore allowed, and the court varied the agreement as sought by Cross Yarra Partnership.

The court's final orders included the approval of the proposed variations to the Deer Park Segment Manufacturing Facility Greenfields Agreement 2019-2021, as set out in the application. The court directed the parties to implement the changes in accordance with the revised agreement, and to continue to act in good faith and in accordance with the terms of the contract. The court also noted that any further disputes between the parties should be resolved through the agreed dispute resolution mechanisms outlined in the original contract.

Cross Yarra Partnership (CYP) (A joint venture comprising John Holland Pty Ltd, Lendlease Engineering Pty Ltd, and Bouygues Construction Australia 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