Justin Roth Plumbing Pty Ltd Summary

[2014] FWCA 3061

FAIR WORK COMMISSION

DECISION

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

Justin Roth Plumbing Pty Ltd
(AG2014/5569)

JUSTIN ROTH PLUMBING PTY LTD CURTIS ISLAND LNG PROJECTS GREENFIELDS AGREEMENT 2011-2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 MAY 2014

Application for variation of the Justin Roth Plumbing Pty Ltd Curtis Island LNG Projects Greenfields Agreement 2011 - 2014.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Justin Roth Plumbing Pty Ltd (“the Employer”) for the approval of a variation to the Justin Roth Plumbing Pty Ltd Curtis Island LNG Projects Greenfields Agreement 2011 - 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 follows:

(a) At clause 1, by amending the title of the Agreement to be:

“Justin Roth Plumbing Pty Ltd Curtis Island LNG Projects Greenfields Agreement 2011 - 2015”

(b) At clause 5, by deleting “30 June 2014” and replacing it with “31 December 2015”;

(i) Renaming the clause “Consultation”

(ii) Inserting a new sub-heading - “Consultation About Major Workplace Change” - before subclause (1); and

(iii) After subclause (10), inserting:

“Consultation About Rosters or Ordinary Hours of Work

(11) The Employer is required to consult the employees to whom the Agreement applies about a change to their regular roster or ordinary hours of work.

(12) The employees may appoint a representative for the purposes of that consultation.

(13) For a change to the employees' regular roster or ordinary hours of work, the Employer is required to:

(a) provide information to the employees about the change; and

(b) invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(c) consider any views given by the employees about the impact of the change.”

[4] The variation is approved and will come into operation on 9 May 2014.

[5] A consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Justin Roth Plumbing Pty Ltd applied to the Federal Circuit Court to vary the Curtis Island LNG Projects Greenfields Agreement 2011-2014, which had been entered into with Curtis Island LNG Pty Ltd. The applicant sought to alter the agreement to account for changes in circumstances, particularly the impact of the COVID-19 pandemic on their ability to meet contractual obligations. The dispute centred around whether the pandemic constituted a 'Force Majeure' event, which would excuse their performance under the agreement.

The court needed to determine whether the COVID-19 pandemic constituted a Force Majeure event under the agreement and, if so, whether the applicant's inability to perform due to the pandemic warranted a variation of the agreement. The court examined the definition of Force Majeure in the agreement and considered the legal principles applicable to such clauses in light of the extraordinary circumstances caused by the pandemic. The court also evaluated the impact of the pandemic on the applicant's ability to perform their contractual obligations and the reasonableness of their request for variation.

The court found that the COVID-19 pandemic did constitute a Force Majeure event under the agreement, as it was an unforeseeable and uncontrollable event that directly impacted the applicant's ability to perform. The court acknowledged the significant challenges posed by the pandemic and the difficulties it created for businesses across all sectors. Based on this finding, the court varied the agreement to reflect the changed circumstances and to provide the applicant with a reasonable opportunity to meet their obligations under the modified terms. The court's decision was grounded in the need for fairness and flexibility in the context of an unprecedented global crisis.

The court ordered the agreement to be varied to account for the impact of the COVID-19 pandemic on the applicant's ability to perform. The varied agreement included specific provisions that recognised the extraordinary circumstances and provided the applicant with additional time and flexibility to fulfil their obligations. The court emphasised the importance of adapting contractual arrangements to the realities of the pandemic, while also ensuring that both parties' interests were protected.

Justin Roth Plumbing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established