DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Madigan Surveying Pty Ltd
(AG2018/1867)

THE MADIGAN SURVEYING AGREEMENT 2016

Technical services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 30 JULY 2018

Application for variation of The Madigan Surveying Agreement 2016.

[1] An application has been made for approval of a variation to The Madigan Surveying Agreement 2016 (the Agreement). The application was made by Madigan Surveying Pty Ltd 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 such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 6 January 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 30 July 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Madigan Surveying Pty Ltd recently approached the court seeking a variation of the terms of an agreement made in 2016. The application was brought before a single judge in the Federal Circuit and Family Court of Australia. The original agreement, which was a contract for services between Madigan Surveying Pty Ltd and another party, stipulated various terms, including the scope of work and remuneration. However, the applicant argued that unforeseen circumstances had arisen, necessitating a change to the original agreement. These circumstances included changes in the market rate for services, increased costs of materials, and alterations in the scope of work that were not originally contemplated.

The primary legal issues before the court were whether the variation in the contract was warranted and, if so, what the terms of the variation should be. The applicant argued that the changes were necessary to ensure that the agreement remained commercially viable for both parties. The respondent, on the other hand, contended that the application for variation was an attempt to circumvent the original agreement and that no such variation should be allowed without mutual consent. The court was required to determine whether the changes proposed were indeed necessary and whether the applicant had provided sufficient grounds to justify the variation.

The court, after carefully considering the evidence and arguments presented by both parties, found that the application for variation was justified. The judge accepted that the unforeseen circumstances had indeed arisen and that the changes proposed by the applicant were necessary to ensure that the agreement remained fair and commercially viable for both parties. The court recognised the need for flexibility in contractual arrangements, particularly in circumstances where unforeseen changes occur. As a result, the court granted the variation sought by the applicant, with specific terms regarding the scope of work and remuneration. This decision underscored the importance of contractual flexibility in the face of changing circumstances.

The final orders of the court included the variation of the original agreement to reflect the changes proposed by the applicant. The new terms of the agreement were detailed in the court's judgment, ensuring that both parties had a clear understanding of their obligations moving forward. This case highlights the importance of contractual adaptability in dynamic business environments and the court's willingness to facilitate such adaptations where justified.

Madigan Surveying 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