Acciona Construction Australia Pty Ltd

[2021] FWCA 5004

[2021] FWCA 5004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Acciona Construction Australia Pty Ltd
(AG2021/6695)

ACCIONA CONSTRUCTION AUSTRALIA PTY LTD QUEENSLAND ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 13 AUGUST 2021

Application for variation of the Acciona Construction Australia Pty Ltd Queensland Enterprise Agreement 2021.

[1] An application has been made by the Acciona Contruction Australia Pty Ltd(the Applicant) pursuant to s.217(1) of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty in various clauses of the Acciona Construction Australia Pty Ltd Queensland Enterprise Agreement 2021 (the Agreement). The Agreement was approved by the Commission in a Decision issued on 26 February 2021 ([2021] FWC 1061). The Australian Workers’ Union (the AWU) is a bargaining representative for the Agreement and is covered by the Agreement.

[2] The Applicant is seeking that the Commission vary theAgreement as follows:

‘That the table in Schedule 1 labelled ‘Wage Rates - $ Per Hour’, replace the first column of the table with the following:

Classification

New Entrant

CW1

CW2

CW3

CW4

CW5

CW6

APPLICANT’S SUBMISSIONS

[3] The Applicant submitted that the wording of the first column in the Schedule 1 table labelled ‘Wage Rates - $ Per Hour’ creates an uncertainty, in relation to the wage rates applicable to classifications of employees, covered by the Enterprise Agreement. Specifically, the classifications provided in the first column in the Schedule 1 table labelled ‘Wage Rates - $ Per Hour’ are not consistent with the classification structure prescribed at clause 6.1 of the Agreement.

[4] The Applicant submitted that the mutual intention of the Applicant and the AWU in drafting clause 6.1 and Schedule 1 was that the classifications prescribed in clause 6.1 be paid the wage rates appearing in Schedule 1, with the critical exception that the first column read as follows:

Classification

New Entrant

CW1

CW2

CW3

CW4

CW5

CW6

[5] The Applicant submitted that as a result of the typographical error, the first column of the ‘Wage Rates - $ Per Hour’ table results in uncertainty as to the wage rates payable to employees classified in accordance with clause 6.1 and failed to reflect the mutual intention of the parties to the Agreement.

[6] The Applicant further submitted that the typographical error resulted in an ambiguity or uncertainty in Schedule 1 of the Agreement that the Applicant sought to be varied. It was further submitted that the typographical error did not reflect the intentions of the parties when drafting the Agreement.

[7] The Applicant submitted that the variation sought is appropriate to remove the ambiguity or uncertainty in order to clarify, in the wording of the Agreement and the parties’ mutual intention.

RELEVANT LEGISLATION

[8] The application has been made under s.217 of the Act, which provides as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

CONSIDERATION

[1] Any ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement is enlivened under s.217 of the Act. 1 There is no clear test for determining when an ambiguity exists,2 but the Commission will generally err on the side of finding an ambiguity or uncertainty where rival contentions are advanced and there is an arguable case made out for more than one contention.3 However, the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning.4 Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will make a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.5

[2] On the basis of the material before me I am satisfied that that there is an ambiguity on the basis that the table in Schedule 1, labelled ‘Wage Rates - $ Per Hour’ of the approved Agreement, do not represent the intentions of the parties and what was agreed between the parties during negotiations.

[3] I am also satisfied that the variation reflects the proper construction of the Agreement, and note that the variation is sought by consent of the Applicant and the AWU, which has been consulted and has confirmed it consents to the proposed variation.

CONCLUSION

[4] I am satisfied that it is appropriate to vary the Agreement to resolve an ambiguity or uncertainty. I am also satisfied that the variation proposed is appropriate. The variation reflects the proper construction of the Agreement. It is appropriate that the discretion to vary the Agreement to resolve the ambiguity or uncertainty is exercised.

[5] The variations will operate from 13 August 2021.

COMMISSIONER

 1   Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].

 2   Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.

 3   Re Victorian Public Transport Enterprise Agreement 1994 [1995] AIRC 192 per VP Ross, SDP Polites and Cmr Grimshaw.

 4   Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per VP Ross, SDP O’Callaghan and Cmr Foggo.

 5 Ibid at [32].

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