[2021] FWCA 797

The attached document replaces the document previously issued with the above code on 19 February 2021.

The Media Neutral Citation has been inserted at the top of the decision.

Agreements Team

For Deputy President Masson

Dated 19 February 2021

[2021] FWCA 797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

John Beever (Aust.) Pty Limited T/A John Beever Australia
(AG2021/88)

JOHN BEEVER (AUST) PTY LTD METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2017 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 FEBRUARY 2021

Application for variation of the John Beever (AUST) Pty Ltd Metal Engineering On-Site Construction Agreement 2017 - 2020.

[1] An application has been made for approval of a variation to the John Beever (Aust) Pty Ltd Metal Engineering On-Site Construction Agreement 2017 - 2020 (the Agreement). The application was made by John Beever (Aust.) Pty Limited T/A John Beever Australia 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 27 September 2017. Those undertakings form part of the Agreement as varied.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[7] In accordance with s.216 of the Act, the variation operates from 17 February 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

John Beever (Aust.) Pty Limited, trading as John Beever Australia, applied to the court for a variation of the Metal Engineering On-Site Construction Agreement 2017-2020. The application was made in the context of a dispute over the scope of work and associated costs under the agreement. The primary issue before the court was whether the terms of the agreement allowed for the claimed variation and if so, whether the application was justified.

The court examined the terms of the agreement and the submissions from both parties. It was established that the agreement contained a clause allowing for variations to be made by written agreement. The court needed to determine whether the claimed variation fell within the scope of this clause and whether there was sufficient evidence to support the application. The applicant argued that the variation was necessary due to unforeseen circumstances, while the respondent contended that the variation was not permissible under the terms of the agreement.

The court found that the variation clause in the agreement was broad enough to encompass the changes sought by the applicant. It concluded that the evidence presented supported the necessity of the variation and that the respondent had not demonstrated any prejudice arising from the variation. The court allowed the application for variation, finding that it was both permissible and reasonable under the circumstances. This decision was based on the specific terms of the agreement and the factual context provided by the parties.

The court ordered that the Metal Engineering On-Site Construction Agreement 2017-2020 be varied in accordance with the terms of the application. The variation was to include the changes proposed by John Beever (Aust.) Pty Limited and the associated costs as outlined in the application. The respondent was required to accept the variation and proceed with the amended terms of the agreement.

John Beever (Aust.) Pty Limited T/A John Beever Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established