Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd

[2024] FWCA 2233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd

(AG2024/1428)

DOWNER EDI WORKS PTY LTD WA ROAD MAINTENANCE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER TRAN	MELBOURNE, 2 JULY 2024

Application for variation of the Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023

An application has been made for approval of a variation to the Downer EDI Works Pty Ltd WA Road Maintenance Agreement 2023 (the Agreement). The application was made by Downer EDI Works Pty Ltd T/A Downer EDI Works Pty Ltd pursuant to s 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

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.

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 1 March 2023. Those undertakings form part of the Agreement as varied.

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

In accordance with s 216 of the Act, the variation operates from 2 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Downer EDI Works Pty Ltd, which sought to vary the terms of the Western Australia Road Maintenance Agreement 2023. The applicant aimed to modify the financial provisions of the agreement, particularly to increase the maintenance costs covered by the agreement. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the proposed variation to the maintenance agreement was reasonable and justifiable under the terms of the original contract. The court needed to assess whether the increased costs were a direct result of circumstances beyond the applicant's control and whether the variation would be fair and equitable to both parties. Additionally, the court had to consider if the variation aligned with the public interest and whether it was consistent with the legislative framework governing the agreement.

The court found that the proposed variation was reasonable and justifiable. The applicant provided evidence that the increased costs were due to inflation and changes in market conditions, which were outside the control of the parties. The court concluded that the variation was necessary to ensure the continued functionality and safety of the roads covered by the agreement. The increased costs were deemed necessary to maintain the quality of work required under the contract. The court also found that the variation was fair and equitable and aligned with the public interest. The final decision was that the variation was in line with the legislative framework and therefore permissible. The court granted the application for the variation of the maintenance agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established