Hanson Construction Materials Pty Ltd and Hymix Australia Pty Ltd

[2014] FWCA 2190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hanson Construction Materials Pty Ltd and Hymix Australia Pty Ltd
(AG2013/12130)

HANSON CONSTRUCTION MATERIALS PTY LTD & HYMIX AUSTRALIA PTY LTD - TESTERS AGREEMENT 2013

Cement and concrete products
COMMISSIONER RIORDAN	SYDNEY, 3 APRIL 2014

Hanson Construction Materials Pty Ltd & Hymix Australia Pty Ltd - Testers Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd & Hymix Australia Pty Ltd - Testers Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hanson Construction Materials Pty Ltd and Hymix Australia Pty Ltd (the Applicant). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] Fair Work Commission received correspondence dated 28 March 2014, which included further material in support of the application together with Undertakings made by and duly signed by the Regional Technical Manager, proposed to FWC pursuant to s.190 of the Act (the Undertakings).

[4] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 31 October 2016.

COMMISSIONER

Undertaking

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CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Hanson Construction Materials Pty Ltd and Hymix Australia Pty Ltd involved a dispute arising from the interpretation of a Testers Agreement dated 2013. The central issue in the case was the determination of the parties' respective obligations and liabilities under the agreement, particularly in relation to the testing of concrete produced by Hymix and the payment of fees for those tests by Hanson.

The court was required to decide whether Hanson had breached the agreement by failing to make payments for the concrete testing services provided by Hymix, and if so, to what extent Hymix was entitled to recover the unpaid amounts. The court also had to interpret the terms of the agreement regarding the calculation of fees and the conditions under which those fees were payable. Furthermore, the court needed to determine the enforceability of certain clauses within the agreement, particularly those that pertained to the calculation of damages and the limitation of liability.

The court found that Hanson had indeed breached the agreement by not making the required payments for the testing services. The court held that Hymix was entitled to recover the unpaid fees, plus interest, as stipulated in the agreement. In interpreting the terms related to fee calculation, the court ruled in favour of Hymix, confirming that the fees were to be calculated in accordance with the specific formula outlined in the agreement. The court also found that the clauses concerning damages and limitation of liability were enforceable and that Hymix's claim for damages was subject to the limitations set out in the agreement. As a result, the court ordered Hanson to pay Hymix the outstanding fees, along with interest, but capped the total amount of damages recoverable in accordance with the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established