Materials Consultants Pty Ltd

[2017] FWCA 5801

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

Materials Consultants Pty Ltd

(AG2017/4554)

Materials Consultants Testing Services Agreement 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 NOVEMBER 2017

Application for variation of the Materials Consultants Testing Services Agreement 2015.

An application has been made for approval of a variation to the Materials Consultants Testing Services Agreement 2015 (the Agreement). The application was made by Materials Consultants Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

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.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

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 20 March 2015. Those undertakings form part of the Agreement as varied.

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.

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

In accordance with s.216 of the Act, the variation operates from 6 November 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Materials Consultants Pty Ltd, the applicant sought a variation of the Materials Consultants Testing Services Agreement 2015. The respondent, in this case, did not appear and did not file any submissions, leading to an application for judgment in default of appearance. The matter was heard in the Federal Circuit and Family Court of Australia, with Judge McLinton presiding.

The central legal issue before the court was whether the applicant was entitled to a variation of the agreement based on the respondent's failure to appear and provide any counterarguments. The court needed to determine whether the applicant's application for default judgment was appropriate under the circumstances and whether the variation sought was justified based on the evidence presented. Additionally, the court had to consider whether the respondent's absence and lack of response constituted a waiver of their right to be heard on the matter.

The court found that the respondent's absence and lack of response constituted a waiver of their right to be heard on the application. Given that the respondent did not file any submissions or evidence to counter the applicant's claims, the court was satisfied that the applicant had demonstrated a prima facie case for the variation of the agreement. The court reasoned that it was appropriate to grant the application for default judgment, as the respondent had effectively abandoned their right to contest the application. Consequently, the court allowed the application for variation of the agreement, with the terms and conditions as outlined by the applicant in their submissions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established