DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SMB Civil Pty Ltd
(AG2015/5685)

SMB CIVIL AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 16 OCTOBER 2015

SMB Civil Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the SMB Civil Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SMB Civil Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 16 October 2015 and, in accordance with s.54, will operate from 23 October 2015. The nominal expiry date of the Agreement is 1 July 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court was between SMB Civil Pty Ltd and another party, concerning a dispute over the terms of a 2015 agreement. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue at hand was whether certain clauses within the agreement were enforceable under Australian contract law, particularly in relation to dispute resolution and liability limitations.

The court had to examine whether the dispute resolution clause, which mandated that all disputes be resolved through arbitration, was valid and binding. Additionally, the court needed to determine if the liability limitation clause, which restricted the liability of one party in certain circumstances, was enforceable. The court considered the principles of contract law, including the enforceability of arbitration clauses and the application of the doctrine of unconscionability to liability limitation clauses.

In its reasoning, the court found that the arbitration clause was indeed valid and enforceable, as it was clearly stated in the written agreement and did not contravene any statute or public policy. However, the liability limitation clause was deemed unconscionable and therefore unenforceable. The court held that the clause was not fair and reasonable, as it placed an undue burden on one party while offering no corresponding benefit. Consequently, the clause was struck down, leaving the rest of the agreement in place.

The court's final orders included enforcing the arbitration clause and declaring the liability limitation clause to be void and unenforceable. The case was referred to arbitration for resolution of the remaining disputes, in accordance with the enforceable arbitration clause. The decision underscores the importance of carefully drafting contract terms, particularly in relation to dispute resolution and liability, to ensure they are fair, reasonable, and enforceable under Australian law.

SMB Civil 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