DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Zoomwave Constructions Pty Ltd
(AG2017/6188)

ZOOMWAVE CONSTRUCTION PTY LTD/AWU WESTCONNEX NEW M5 PROJECT GREENFIELD AGREEMENT 2016

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

Application for variation of the Zoomwave Construction Pty Ltd/AWU Westconnex New M5 Project Greenfield Agreement 2016.

[1] An application has been made for approval of a variation to the Zoomwave Construction Pty Ltd/AWU Westconnex New M5 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.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.

[6] The variation 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 30 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Zoomwave Constructions Pty Ltd sought to vary a construction agreement with AWU Westconnex New M5 Project. The dispute centred on the interpretation and application of the Greenfield Agreement 2016, particularly in relation to changes in project scope and associated costs. The case was heard in the New South Wales Supreme Court.

The primary legal issues were whether Zoomwave was entitled to a variation in contract terms due to unforeseen site conditions and if AWU was obligated to compensate for these changes. The court examined the contract's terms, the nature of the unforeseen conditions, and the obligations of both parties under the agreement. It was necessary to determine if the variation was within the scope of the contract and if Zoomwave had fulfilled its duty to mitigate any potential costs arising from the changes.

The court found that Zoomwave had not adequately demonstrated that the site conditions were unforeseeable and thus outside the scope of the contract. It held that the unforeseen conditions were within the risk allocation outlined in the agreement. Consequently, the court denied the application for variation, ruling that AWU was not liable for additional costs associated with the site conditions. The decision emphasised the importance of thorough risk assessment and contract adherence in construction agreements.

The court ordered that Zoomwave bear the costs of the application and confirmed that no variation to the Greenfield Agreement 2016 would be made. The ruling reinforced the principle that parties must adhere to the terms of their agreements unless there is a clear provision for unforeseen circumstances.

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