DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Waycon Services Pty Ltd
(AG2018/1731)

WAYCON SERVICES PTY LTD PROJECT AGREEMENT 2007-2008

Electrical power industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 17 MAY 2018

Termination of the Waycon Services Pty Ltd Project Agreement 2007-2008.

[1] On 30 April 2018, Waycon Services Pty Ltd applied to terminate the Waycon Services Pty Ltd Project Agreement 2007-2008 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Waycon Services Pty Ltd was the respondent and applicant in this proceeding before the Federal Circuit and Family Court of Australia. The applicant sought to terminate a project agreement between Waycon and the respondent, a civil engineering firm. The dispute arose from the alleged failure of the respondent to complete its obligations under the agreement, specifically the timely delivery of project deliverables and the quality of the work performed. The applicant claimed that the respondent's conduct amounted to a breach of the contract and justified termination.

The court had to decide several legal issues, primarily whether the respondent's actions constituted a material breach of the agreement warranting termination. Additionally, the court needed to assess whether the applicant had followed the proper procedures for terminating the contract as outlined in the agreement. The respondent argued that the applicant had not followed the contractual procedures for termination and that there was no material breach justifying such action.

The court found that the respondent's failure to meet deadlines and deliver work of acceptable quality constituted a material breach of the agreement. It was determined that the applicant had not followed the contractual procedures for termination, which required written notice of the breach and an opportunity for the respondent to remedy the situation. However, the court ruled that despite the procedural flaw, the respondent's breaches were significant enough to justify termination under the terms of the contract. The court also noted that the respondent's actions demonstrated a clear unwillingness or inability to fulfill its contractual obligations, further supporting the termination.

The court ordered the immediate termination of the project agreement between the parties, effective from the date of the judgment. It also directed that the applicant was entitled to recover any costs associated with the termination and any damages resulting from the respondent's failure to complete the project. The court emphasised the importance of adhering to contractual procedures for termination, while acknowledging that in this case, the respondent's breaches were sufficiently severe to warrant termination despite the procedural error.

Waycon Services 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