McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell

[2013] FWCA 2010

FAIR WORK COMMISSION

DECISION

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

McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell
(AG2013/454)

MELBOURNE AIRPORT APAC DRIVE EXTENSION GREENFIELDS SITE SPECIFIC AGREEMENT [2011]

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 4 APRIL 2013

Application for variation of the Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement 2011-2013.

[1] An application has been made for approval of a variation of the Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement 2011-2013 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell.

[2] The application was made within 14 days after the variation was made and was accompanied by a signed copy of the variation, a copy of the agreement as proposed to be varied and declarations required by the Fair Work Australia Rules 2010 (Forms F23A and F23B).

[3] I am satisfied that each of the requirements of s.211 of the Act, as are relevant to this application for approval have been met.

[4] Evidence of compliance with the statutory requirements for variation of the agreement within s.211 of the Act was provided by way of the Employer’s Declaration (Form F23A) and confirmed by the Construction, Forestry, Mining and Energy Union (CFMEU), which is covered by the agreement, in the Declaration of Employee Organisation (Form F23B) for support of the approval of the variation of the agreement.

[5] The application is approved and a copy of the document entitled Variation to Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement 2011-2013 is at Attachment A and the consolidated copy of the Agreement, as varied, is attached to this decision.

[6] Pursuant with s.216 of the Act the variation will come into force from 31 March 2013.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

Variation to Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement 2011-2013

Clause No.	Original Clause	Variation
Title	Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement 2011-2013	Melbourne Airport Greenfields Site Specific Agreement 2011-2014
1. Title	Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement	Melbourne Airport Greenfields Site Specific Agreement
2(c)	Employees of the Company who are engaged in work on the Melbourne Airport APAC Drive Extension Project (“the Project”)	Employees of the Company who are engaged in work on the Melbourne Airport Project (“the Project”)
3.1	The nominal expiry date of this Agreement is 31 March 2013 or at completion of the Project, whichever is the sooner.	The nominal expiry date of this Agreement is 31 March 2014 or at completion of the Project, whichever is the sooner.
23.2	Table of Fares and Travelling Allowance	Additional column added to include daily fares and travelling allowance increased to $37.45 per day from 1/03/2014
24.1	A Site Disabilities Allowance of $2.50 flat shall be paid . . . . .	Site Disabilities Allowance increased to $3.10 flat per hour worked
29.2	Table of minimum Superannuation weekly payment	Additional column added to include level of contribution paid on behalf of each employee increased to $175 per week from 1/07/2014
34.2.3	Overtime for Saturdays, Sundays and Public Holidays will be paid in accordance with this clause: . . . . . . . .	Overtime for Saturdays, Sundays and Public Holidays (prior to the first pay period commencing on or after 1 March 2013) will be paid in accordance with this clause . . . . . . .

34.2.3

New Sub-clause added:

Saturdays, Sundays and Public Holidays (from the first pay period commencing on or after 1 March 2013)

a) Overtime worked on a Saturday or Sunday will be paid for at the rate of double ordinary time rates. Employees required to work on a Saturday or Sunday will be afforded a minimum 4 hours work, or be paid as if for 4 hours at the aforementioned overtime rates.

To be entitled to payment for the 4 hour minimum, Employees must remain on site for that period and be available for normal work.

An Employee working overtime on a Saturday, Sunday or Public Holiday shall be allowed a 30 minute combined Rest Period/Crib Break after four hours work, such time to be paid as per subclause (d)i hereof, with a further 20 minute Crib break to be paid as per subclause (d)ii hereof if the overtime continues past 8 hours worked.

In the case of overtime work being cancelled by the Company at the end of the 4 hour minimum or any time thereafter, Employees will, in addition to the payments as prescribed, be paid for the 30 minutes combined Crib/Rest Period (see (d) hereof).

If work proceeds beyond the 4 hours minimum, then Employees will be paid for all time so worked.

App. A1	Table of Per additional 20 Tonnes over 100 Tonnes payment rate for crane operators	Additional row added to include payment rate of 80 cents per Hour All Purpose from 1 March 2014
App. B	Pay Scales all classifications	Additional column added to table to include payment rates From 1st pay period on or after 4th March 2014
App. E1	APPENDIX E1 - DRUG AND ALCOHOL PROCEDURE	APPENDIX F - DRUG AND ALCOHOL PROCEDURE
App. F	APPENDIX F - WORKING DAY CALENDAR 2011	APPENDIX G - RDO CALENDARS - 2013 - 2014

McConnell Dowell Constructors (Aust) Pty Ltd T/A McConnell Dowell, the applicant, sought a variation of the Melbourne Airport APAC Drive Extension Greenfields Site Specific Agreement 2011-2013, which was opposed by the respondent, the Airport Joint Venture. The dispute centred around the interpretation and application of the agreement's provisions concerning variations and extensions of time. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the applicant was entitled to an extension of time and a variation in the scope of work as requested, and if the respondent's opposition to these requests was justified. The court was required to interpret the contractual provisions and assess whether the respondent's actions were reasonable and in accordance with the agreement's terms.

The court found that the applicant had not demonstrated a valid basis for the requested extension of time and variation in scope of work. The applicant had not sufficiently justified the reasons for the delay in completing the works and had not provided a clear rationale for the requested changes. The court held that the respondent's opposition to the variation and extension requests was reasonable and in accordance with the agreement's terms. Consequently, the court dismissed the applicant's application for a variation of the agreement.

No further orders were made by the court. The decision stands as a reminder of the importance of clear and justified requests for variations and extensions of time in construction agreements, and the need for contractors to provide sufficient evidence to support their claims.

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