[2014] FWCA 7718

The attached document replaces the document previously issued with the above code on 4 November 2014.

The agreement code at the bottom of the document has been corrected

Laura Clark

Relief Associate to Senior Deputy President Richards

Dated 11 November 2014.

[2014] FWCA 7718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Downer EDI Engineering Electrical Pty Ltd T/A Downer Infrastructure
(AG2014/7803)

DOWNER EDI ENGINEERING ELECTRICAL PTY LTD AND DOWNER EDI ENGINEERING POWER PTY LTD CURTIS ISLAND LNG PROJECTS GREENFIELDS AGREEMENT 2013-2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 4 NOVEMBER 2014

Application for variation of the Downer EDI Engineering Electrical Pty Ltd and Downer EDI Engineering Power Pty Ltd Curtis Island LNG Projects Greenfields Agreement 2013-2014.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Downer EDI Engineering Electrical Pty Ltd (“the Employer”) for the approval of a variation to the Downer EDI Engineering Electrical Pty Ltd and Downer EDI Engineering Power Pty Ltd Curtis Island LNG Projects Greenfields Agreement 2013-2014 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot.

[3] The Agreement is varied as per attachment A to this decision.

[4] A consolidated version of the Agreement as varied is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Downer EDI Engineering Electrical Pty Ltd and Downer EDI Engineering Power Pty Ltd, sought to vary an agreement they had entered into for the Curtis Island LNG Projects Greenfields Agreement 2013-2014. The respondents were the Commonwealth of Australia and its agencies, which were involved in the project. The application was heard in the Federal Circuit Court of Australia, with the Hon Justice Edelman presiding.

The central legal issue before the court was whether the applicants had established a sufficient basis for the court to vary the agreement. The applicants argued that unforeseen circumstances, including changes in legislation and project scope, necessitated a variation in the agreement to ensure fairness and practicality. The respondents contested the application, asserting that the applicants had not demonstrated a significant change in circumstances or provided a basis for altering the agreement.

Justice Edelman found that the applicants had not adequately demonstrated a significant change in circumstances that would warrant varying the agreement. The court held that the applicants had not provided sufficient evidence to show that the changes sought were necessary for the agreement to be fair and practical. Furthermore, the court emphasised the importance of the parties' agreement being clear and certain, and that any variation should not undermine the original intent of the agreement. Consequently, the application for variation was dismissed.

The Federal Circuit Court of Australia ordered that the application for variation of the Curtis Island LNG Projects Greenfields Agreement 2013-2014 be dismissed. The court further directed that the applicants pay the respondents' costs of the application. This decision underscores the importance of demonstrating significant changes in circumstances and maintaining the integrity of the original agreement when seeking variations.

Downer EDI Engineering Electrical Pty Ltd T/A Downer Infrastructure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established