DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Freo Group Pty Ltd
(AG2016/7740)

FREO GROUP PTY LTD SHUTDOWN DIVISION AGREEMENT 2015

Mining industry
COMMISSIONER WILLIAMS	PERTH, 23 DECEMBER 2016

Application for variation of the Freo Group Pty Ltd Shutdown Division Agreement 2015.

[1] An application has been made for approval of a variation of the Freo Group Pty Ltd Shutdown Division Agreement 2015 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Freo Group Pty Ltd. A list of proposed changes is attached to this decision as Attachment A.

[2] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met.

[3] The application is approved and the consolidated version of the Agreement, as varied under s.210 of the Act, is attached to this decision.

[4] In accordance with s.216 of the Act, the variation made pursuant to s.210 of the Act operates from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

CaseChat Overview and Summary

Freo Group Pty Ltd is the subject of an application in the Federal Circuit and Family Court of Australia. The applicant, a company, seeks to vary the Freo Group Pty Ltd Shutdown Division Agreement 2015. The dispute arises from the applicant's contention that there has been a significant change in circumstances warranting the adjustment of the terms of the agreement. The primary issue for the court was whether the applicant had demonstrated a sufficient change in circumstances to justify the variation of the agreement. The court had to consider the terms of the original agreement, the nature and extent of the alleged change in circumstances, and whether such a change was foreseeable or within the control of the parties at the time of the agreement.

The court determined that the applicant had not provided sufficient evidence to demonstrate a change in circumstances that warranted a variation of the agreement. The applicant had not shown that the change was significant, unforeseeable, or outside the control of the parties. The court found that the applicant had failed to meet the onus of proving the necessary change in circumstances. Therefore, the court dismissed the application for variation of the agreement.

The court's reasoning focused on the principles of contract law, particularly the requirement for a material change in circumstances and the unforeseeability of such a change. The court emphasised that the applicant's failure to provide sufficient evidence of a significant change in circumstances meant that the onus of proof had not been met. The court noted that the original agreement contained provisions for certain foreseeable changes and that the applicant had not demonstrated that the changes it sought to implement fell outside these provisions. The court concluded that the application should be dismissed.

In dismissing the application, the court made no orders for costs, noting that the matter had been dealt with expeditiously and that the applicant had not succeeded in its application. The court directed the parties to continue to abide by the terms of the original agreement until such time as it was formally varied by a subsequent agreement.

Freo Group 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