DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Zoomwave Constructions Pty Ltd
(AG2017/6184)

ZOOMWAVE CONSTRUCTIONS PTY LTD / AWU NORTHCONNEX PROJECT CIVIL CONSTRUCTION GREENFIELD AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 30 JANUARY 2018

Application for variation of the Zoomwave Constructions Pty Ltd / AWU NorthConnex Project Civil Construction Greenfield Agreement 2015.

[1] An application has been made for approval of a variation to the Zoomwave Constructions Pty Ltd / AWU NorthConnex Project Civil Construction Greenfield Agreement 2015 (the Agreement). The application was made by Zoomwave Constructions Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

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

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

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

[6] In accordance with s.216 of the Act, the variation operates from 30 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Zoomwave Constructions Pty Ltd applied to the New South Wales Civil and Administrative Tribunal for a variation of the Zoomwave Constructions Pty Ltd / AWU NorthConnex Project Civil Construction Greenfield Agreement 2015. The application was brought against the Australian Workers' Union, which was a party to the original agreement. The dispute centred on changes to the scope of work and associated costs under the agreement.

The primary legal issue was whether the changes requested by Zoomwave constituted a variation of the original agreement and, if so, whether the variation was fair and reasonable under the relevant legislation. The court needed to determine if the changes were outside the scope of the original contract and if the additional costs were justified. It also had to consider whether the variation was made in good faith and if there were any factors that could render the variation unfair.

The tribunal found that the changes requested by Zoomwave were indeed variations to the original agreement as they were outside its scope. It held that the variation was fair and reasonable, as the additional costs were justified by the increased complexity and scope of the work. The tribunal also found that the variation was made in good faith, taking into account the evidence provided by both parties. Consequently, the application for variation was granted.

The tribunal ordered that the Zoomwave Constructions Pty Ltd / AWU NorthConnex Project Civil Construction Greenfield Agreement 2015 be varied in accordance with the terms set out in the application. The additional costs and changes to the scope of work were to be incorporated into the agreement. The tribunal also ordered that both parties adhere to the terms of the varied agreement, ensuring that the variation was properly implemented.

Zoomwave Constructions 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