ABB Australia Pty Limited

[2013] FWCA 2654

[2013] FWCA 2654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

ABB Australia Pty Limited
(AG2013/5274)

Manufacturing and associated industries
COMMISSIONER BLAIR	MELBOURNE, 30 APRIL 2013

Application for variation of the AMWU, ABB Australia Pty Ltd Fosters Site Collective Agreement 2011

[1] An application has been made under s.217 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to vary an agreement to remove an ambiguity or uncertainty. The application is made by ABB Australia Pty Limited (the Applicant) and seeks to vary clause 11 of the AMWU, ABB Australia Pty Ltd Fosters Site Collective Agreement 2011 [AE888543] (the Agreement).

[2] The application arises out of an application made under s.739 of the Act by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for the resolution of a dispute in relation to the correct wage classification for apprentices, C2012/1273.

[3] This matter was dealt with at the same time as C2012/1273.

[4] Following on from the Commission’s reasons in the decision issued in C2012/1273 [PR535877] the Commission accepts that there are competing views in relation to the effect of clause 11.4 of the Agreement. Those competing views are indicative of an ambiguity or an uncertainty affecting the application of the Agreement.

[5] Although a simple application under the Act in itself does not give rise to ambiguity or uncertainty, the fact that the parties were unable to reach agreement following two conferences and then having to resort to arbitration in order to obtain a decision setting out the meaning of clause 11.4 of the Agreement clearly identifies that clause 11.4, as currently worded, does give rise to an ambiguity and, very clearly, uncertainty about its application.

[6] The Commission is satisfied that, in order to provide certainty concerning the application of clause 11.4 of the Agreement, the variation proposed by the Applicant should be accepted.

[7] Therefore, the Commission is satisfied that it should exercise its powers under s.217 of the Act and orders that the Agreement be varied by deleting from clause 11.4 the words “the Tradesmans rate of pay” and inserting the words “the C10 rate of pay” in lieu thereof.

[8] The Agreement is varied and, in accordance with s.217(2) of the Act, will operate from 30 September 2011. A consolidated version of the Agreement, as varied, is attached to this Decision.

COMMISSIONER

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<Price code J, AE888543  PR536159>