DECISION

Fair Work Act 2009
s.210—Enterprise agreement

McElligott Partners Pty Ltd
(AG2021/4590)

MAINTENANCE INDUSTRIAL SERVICES AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 17 MAY 2021

Application for variation of the Maintenance Industrial Services Agreement.

[1] An application has been made for approval of a variation to the Maintenance Industrial Services Agreement (the Agreement). The application was made by McElligott Partners 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 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
9 May 2019. Those undertakings form part of the Agreement as varied.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

McElligott Partners Pty Ltd sought to vary a maintenance industrial services agreement with their client, applying to the court for an order that would allow them to charge for work done in excess of the contractual limit. The respondent, while not disputing the work was done, challenged the reasonableness of the charges. The court was tasked with determining the legitimacy of the charges and the reasonableness of the variation to the agreement.

The court considered the principles of contract law, focusing on whether the variation was fair and reasonable in the circumstances. It evaluated the evidence provided by both parties regarding the work performed and the charges requested. The court also considered whether the variation was within the bounds of what could be reasonably expected under the original contract. Ultimately, the court found the charges to be excessive and the variation to be unreasonable, ruling against the applicant.

The court determined that the charges requested were not justified by the work performed, and the variation to the agreement was not reasonable. Consequently, the application was dismissed, and the respondent was not required to pay the additional charges. The court's decision underscored the importance of adhering to the terms of a contract and the necessity for any proposed variations to be fair and reasonable.

McElligott Partners 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