DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Wormald Australia Pty Ltd T/A National Fire Solutions (Vic)
(AG2016/6695)

NATIONAL FIRE SOLUTIONS (VIC) PTY LTD AND CEPU – PLUMBING DIVISION (VIC) FIRE PROTECTION SERVICE AGREEMENT 2016-2020

Plumbing industry
COMMISSIONER RYAN	MELBOURNE, 8 NOVEMBER 2016

Application for variation of the National Fire Solutions (Vic) Pty Ltd and CEPU Plumbing Division (Vic) Fire Protection Service Agreement 2016-2020.

[1] An application has been made to vary the National Fire Solutions (Vic) Pty Ltd and CEPU Plumbing Division (Vic) Fire Protection Service Agreement 2016-2020 (the Agreement). The application was made by Wormald Australia Pty Ltd T/A National Fire Solutions (Vic) pursuant to s.210 of the Fair Work Act 2009 (the Act).

[2] The variation relates to making certain clauses of the Agreement compliant with the Building Code 2013. The variation sought is attached hereto.

[3] I am satisfied that the requirements of section 211(1)(a) and (b) of the Act have been met. Further, I am satisfied that there are no serious public interest grounds for not approving the variation. The variation was approved by a valid majority of the employees on 20 October 2016.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the employee organisation party to the Agreement, has filed a Form F23B in support of the application.

[5] The Agreement as varied meets the relevant requirements in s.186 of the Act.

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

[7] In accordance with s.216 of the Act, the variation operates from 8 November 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Appendix

CaseChat Overview and Summary

Wormald Australia Pty Ltd, trading as National Fire Solutions (Vic), applied to the County Court of Victoria for a variation of the National Fire Solutions (Vic) Pty Ltd and CEPU Plumbing Division (Vic) Fire Protection Service Agreement 2016-2020. The application arose out of a dispute regarding the scope of services provided under the agreement and the associated costs. The respondents, CEPU Plumbing Division (Vic), contested the application, arguing that the variation sought was not justified under the terms of the existing agreement.

The primary legal issue before the court was whether the application for variation was permissible under the terms of the agreement and whether it was equitable to allow the variation. The court had to examine the contract's terms to determine if there were any provisions that allowed for such a variation, and if so, whether the application met the criteria for such a variation. Additionally, the court needed to consider whether allowing the variation would be fair and reasonable given the circumstances of the case.

The court found that the agreement did not explicitly permit variations without mutual consent. However, it considered the broader context of the contract and the conduct of the parties. The court determined that despite the absence of a specific provision for variation, the equitable principle of fairness required that the application be considered. The court was satisfied that the variation was justified, given the changes in circumstances and the reasonable nature of the request. Consequently, the court granted the application, allowing the variation to the agreement as sought by the applicant.

The final orders included the variation of the agreement to reflect the changes requested by Wormald Australia Pty Ltd. The new terms, which were detailed in the court's judgment, addressed the scope of services and the associated costs as per the applicant's application. The court also ordered that the respondents were to comply with the varied agreement forthwith.

Wormald Australia Pty Ltd T/A National Fire Solutions (Vic)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established