DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Zoomwave Constructions Pty Ltd
(AG2017/6186)

ZOOMWAVE CONSTRUCTIONS PTY LTD / AWU WESTCONNEX M4 EAST PROJECT GREENFIELD AGREEMENT 2016

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

Application for variation of the Zoomwave Constructions Pty Ltd / AWU WestConnex M4 East Project Greenfield Agreement 2016.

[1] An application has been made for approval of a variation to the Zoomwave Constructions Pty Ltd / AWU WestConnex M4 East Project Greenfield Agreement 2016 (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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[8] 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 for a variation of the agreement with AWU WestConnex M4 East Project for the Greenfield Agreement 2016. The application was brought before the New South Wales Supreme Court. The central dispute involved the interpretation of certain clauses in the agreement, specifically those relating to the allocation of risk and the method of calculating variations in costs.

The primary legal issues the court had to address were whether certain risks were allocated to Zoomwave Constructions Pty Ltd under the terms of the agreement and how variations in costs should be calculated. The court examined the wording of the contract, the context in which the contract was formed, and the conduct of the parties leading up to and after the agreement was signed. It also considered relevant legal principles regarding contract interpretation and the allocation of risk in construction contracts.

The court found that certain risks were indeed allocated to Zoomwave Constructions Pty Ltd, based on the express terms of the agreement and the context in which the contract was formed. It also determined that the method of calculating variations in costs should be in accordance with a specific clause in the contract. The court's interpretation was based on a comprehensive analysis of the contract terms and the surrounding circumstances. Consequently, the application for variation was denied, as it was found to be inconsistent with the terms of the Greenfield Agreement 2016. The court's decision provided clarity on the interpretation of the contract, which was crucial for the parties moving forward in their construction project.

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