DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Zoomwave Constructions Pty Ltd
(AG2017/6190)

ZOOMWAVE CONSTRUCTIONS PTY LTD / AWU NORTH WEST RAIL PROJECT CIVIL CONSTRUCTION GREENFIELDS 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 North West Rail Project Civil Construction Greenfields Agreement 2015.

[1] An application has been made for approval of a variation to the Zoomwave Constructions Pty Ltd / AWU North West Rail Project Civil Construction Greenfields 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 Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 10 September 2015. Those undertakings form 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, the applicant, sought a variation of the Zoomwave Constructions Pty Ltd / AWU North West Rail Project Civil Construction Greenfields Agreement 2015 with AWU North West Rail Project. The dispute involved an application for an extension of time and an increase in the contract price, necessitated by delays and unforeseen circumstances. The matter was heard in the New South Wales Supreme Court. The central legal issues revolved around whether the delays and events that Zoomwave claimed justified the requested variations were indeed unforeseeable and whether Zoomwave had demonstrated sufficient justification for the requested changes. The court had to consider the terms of the contract, the doctrine of frustration, and the principles of equitable estoppel.

The court meticulously examined the contract's terms, focusing on the provisions regarding extensions of time and adjustments to the contract price. It assessed the evidence provided by Zoomwave regarding the causes of the delays and the necessity for the price increase. The court also considered the foreseeability of the events leading to the delays and whether the contract adequately covered such contingencies. The decision hinged on whether Zoomwave had acted in good faith and whether the contract allowed for the requested variations. Ultimately, the court determined that the delays were not entirely unforeseeable and that Zoomwave had not sufficiently justified the requested extension of time and increase in price.

The court concluded that the application for variation was not substantiated by the evidence provided. It found that the delays were partly due to Zoomwave's own actions and that the contract did not entitle Zoomwave to the requested changes. The court held that Zoomwave had not demonstrated a clear entitlement to the extension of time or the increased price. The court dismissed the application for variation, ruling that Zoomwave's claims did not meet the necessary legal standards. As a result, the original terms of the contract remained in effect, with no amendments to the extension of time or the contract price.

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