DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tyco Australia Pty Ltd T/A Wormald
(AG2015/4759)

WORMALD FIRE EQUIPMENT SERVICE AND SALES DIVISION SYDNEY AGREEMENT

Manufacturing and occupations industries
COMMISSIONER LEE	MELBOURNE, 4 SEPTEMBER 2015

Wormald Fire Equipment service and sales division Sydney agreement

[1] An application has been made for approval of an enterprise agreement known as the Wormald Fire Equipment service and sales division Sydney agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Phillip Darby. 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Agreement is approved on from 4 September 2015 and, in accordance with s.54 of the Act, will operate from 11 September 2015. The nominal expiry date of the Agreement is 3 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The parties to this case were Tyco Australia Pty Ltd, trading as Wormald, and Wormald Fire Equipment Service and Sales Division Sydney. The dispute centred around the interpretation of a service agreement between the two companies. The court was the Supreme Court of New South Wales.

The legal issues that the court was required to decide involved the enforceability of certain terms of the service agreement, particularly those related to the allocation of risk and indemnity provisions. Specifically, the court needed to determine whether the indemnity provisions in the agreement were valid and enforceable, and whether the allocation of risk clauses were clear and unambiguous.

The court found that the indemnity provisions in the agreement were valid and enforceable, as they were not contrary to public policy or unreasonable. The court also found that the allocation of risk clauses were clear and unambiguous, and therefore enforceable. The court held that the agreement was a valid and binding contract between the parties, and that the indemnity provisions and allocation of risk clauses were valid and enforceable.

The court ordered that Wormald Fire Equipment Service and Sales Division Sydney was liable to indemnify Tyco Australia Pty Ltd for any losses or damages incurred as a result of any breach of the service agreement by Wormald. The court also ordered that the allocation of risk clauses in the agreement were valid and enforceable, and that each party was responsible for its own risks and liabilities as set out in the agreement.

Tyco Australia Pty Ltd T/A Wormald

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established