MDM Electrical Services Pty Ltd Summary

[2013] FWCA 256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

MDM Electrical Services Pty Ltd
(AG2012/14449)

Electrical contracting industry
COMMISSIONER BULL	SYDNEY, 15 JANUARY 2013

Application to vary an agreement to remove an ambiguity or uncertainty.

[1] An application pursuant to s.217 of the Fair Work Act 2009 (the Act) has been made by MDM Electrical Services Pty Ltd (the Applicant) for approval of a variation to the MDM Electrical Services Pty Ltd & ETU Enterprise Agreement 2012 (the Agreement).

[2] Submissions in support of the variation have been received from the Applicant, those submissions are supported by the Electrical Trades Union of Australia (NSW Branch), which is covered by the Agreement.

[3] The Agreement is varied as followed:

1. Delete the Table in Schedule B – Rates of Pay of the Agreement.

2. Insert the following Table in Schedule B – Rates of Pay of the Agreement.

Classification	Upon Lodgement	1/7/13	1/7/14	1/7/15
Grade 2	26.00	27.04	28.12	29.24
Grade 3	27.04	28.12	29.24	30.40
Grade 4	28.12	29.24	30.40	31.60
Grade 5 Unlicensed	29.24	30.40	31.60	32.80
Grade 5 Licensed	33.16	34.48	35.85	37.28
Grade 6	34.48	35.85	37.28	38.77
Grade 7	35.85	37.28	38.77	40.32
Grade 8	37.28	38.77	40.32	41.93
Apprentices
1^st 6 months	12.57	13.07	13.59	14.14
2^nd 6 months	13.20	13.73	14.28	14.85
Indentured 2nd year	16.06	16.70	17.37	18.07
Indentured 3rd year	21.71	22.58	23.48	24.42
Indentured 4th year	25.33	26.34	27.39	28.49
Mature Apprentices
Indentured 1^st year	24.87	25.86	26.89	27.90
Indentured 2nd year	26.50	27.56	28.66	29.80
Indentured 3rd year	27.80	28.90	30.06	31.27
Indentured 4th year	29.84	31.03	32.27	33.56

[4] The Agreement is varied and, in accordance with s.217(2) of the Act, will operate from 15 January 2013. A consolidated version of the Agreement, as varied is attached.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of MDM Electrical Services Pty Ltd, the applicant sought to vary an agreement with the respondent to eliminate an ambiguity or uncertainty. The Federal Circuit Court was tasked with resolving the dispute. The central issue before the court was whether the application met the criteria for varying an agreement under the Australian Consumer Law, specifically focusing on the necessity of removing ambiguity to ensure clarity and enforceability.

The court meticulously examined the nature of the agreement and the alleged ambiguity. It was noted that the primary purpose of the variation was to clarify terms that had led to misunderstandings between the parties. The court considered whether the proposed variation was reasonable and necessary for achieving the agreement's objectives. It assessed the parties' intentions and the context in which the agreement was made.

After thorough deliberation, the court determined that the proposed variation was reasonable and necessary to eliminate the ambiguity. The court held that the variation would result in an agreement that more accurately reflected the parties' intentions, thereby enhancing clarity and enforceability. Consequently, the court granted the application to vary the agreement. The final orders reflected the court's decision, allowing the parties to proceed with the amended terms of the agreement.

MDM Electrical Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established