ActewAGL Corporation Ltd

[2013] FWCA 6212

[2013] FWCA 6212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

ActewAGL Corporation Ltd
(AG2013/8671)

ACTEWAGL AND COMBINED UNIONS ENTERPRISE AGREEMENT 2011

Electrical power industry
COMMISSIONER DEEGAN	CANBERRA, 3 SEPTEMBER 2013

Application to vary the ActewAGL and Combined Unions Enterprise Agreement 2011 to remove an ambiguity or uncertainty.

[1] This is an application pursuant to s.217 of the Fair Work Act 2009 (the Act) filed by ActewAGL Corporation Ltd (the applicant) to vary the ActewAGL and Combined Unions Enterprise Agreement 2011 (the Agreement) to remove an ambiguity or uncertainty.

[2] It is proposed that clauses 5.1 and 5.2 of the Agreement be deleted and replaced with the following:

“5.1 The provisions of the ACTEW Corporation Limited Employment Conditions Award 1998 (AT 768190) (“Award”), as amended from time to time, are incorporated into this Agreement.

5.2 If, during the term of this Agreement, the Award ceases to operate, the provisions of the version of the Award that was in operation immediately before it ceased to operate are incorporated into this Agreement.”

[3] The application is supported by The Association of Professional Engineers, Scientists and Managers, Australia, The Australian Workers’ Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, CPSU, the Community and Public Sector Union, Construction, Forestry, Mining and Energy Union, National Union of Workers and the Transport Workers’ Union of Australia (the Unions).

[4] Given that the application is supported by all relevant parties, a hearing is unnecessary.

[5] Section 217 of the Act provides:

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

(1) FWA 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 FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

Consideration

[6] The application is made by the employer covered by the Agreement, in accordance with s.217(1)(a) of the Act.

[7] In support of the application, the applicant made the following submission:

‘2.1 Clause 5 of the ActewAGL and Combined Unions Enterprise Agreement 2011 (EA)provides as follows:

"5.1 This Agreement (including its Schedules) must be read in conjunction with the ACTEW Corporation Limited Employment Conditions Award 1998 (AT768190) ("Award") as amended from time to time.

5.2 If, during the term of this Agreement, the Award ceases to operate, this Agreement must be read in conjunction with the version of the Award that was in operation immediately before it ceases to operate.

5.3 If there is any inconsistency between the express terms of this Agreement (including its Schedules) and the Award, the express terms of this Agreement will prevail to the extent of the inconsistency." (emphasis added)

2.2 The Applicant submits that, where an enterprise agreement directs that the agreement is to be read "in conjunction with" an award, such terminology does not definitively identify the relationship between the award and the agreement.

2.3 For instance:

(a) on one view, the use of the phrase "in conjunction with" suggests that the instruments operate 'side by side', as opposed to one instrument being incorporated into the other. This is an interpretation that has previously been adopted by the South Australian Industrial Relations Commission in Csx World Terminals Adelaide Pty Ltd v Tully and Prior [2004] SAIRC 97 at [77] (CSX v Tully) (although only after substantial disputation between the parties in that case); and

(b) on the other hand, in some cases the context of an agreement may indicate that the instruction to read a document in conjunction with another document can indicate that the second document is incorporated into the first.

2.4 In this case, the use of the phrase "in conjunction with" in the EA has an ambiguous operation. Cases such as Csx v Tully would suggest that the phrase has the effect of treating the EA and the ACTEW Corporation Limited Employment Conditions Award 1998 (Award) as separate documents with separate operation. However, the context in which the phrase appears suggests that a contrary conclusion should be arrived at. Specifically clauses 5.1, 5.2 and 5.3 of the EA each have provisions that suggest that the Award is incorporated into the EA, subject to any inconsistency with the EA's provisions. This intention is evidence by:

(a) firstly, clause 5.1 of the EA, which contemplates employee entitlements deriving from the Award during the life of the EA, notwithstanding that the EA covered employees would not, as a matter of law, be subject to any of the provisions of the Award whilst covered by the EA;

(b) secondly, clause 5.2 of the EA, which expressly contemplates a situation where the Award may be terminated, yet the Award's most recent provisions would continue to have some application after the Award's termination; and

(c) thirdly, clause 5.3 of the EA considering it necessary to expressly state that the EA prevails over the Award only "to the extent of any inconsistency", notwithstanding that the effect of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 is that the EA should entirely exclude the operation of the Award.

2.5 In light of the conflict between the ordinary meaning of the words "in conjunction with" and the specific context in which those words appear in the EA, it is submitted that clauses 5.1 and 5.2 of the EA are susceptible to more than one meaning, thus enlivening the jurisdiction of the Commission under section 217 of the FW Act.

[8] The applicant further submitted that the principles to be applied by the Fair Work Commission when determining s.217 variation applications are usefully summarised in the decision of Lewin C in Fosterville Gold Mine Pty Ltd (Fosterville) 1 as follows:

‘a. The Tribunal should approach the matter by way of two stages. Firstly, as a jurisdictional pre-requisite, identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty has been identified, FWA has discretion whether or not to vary the agreement. Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (Full Bench, 9 May 2002, PR917548) at [28], [32] & [35].

b. The first part of the process (ie identifying ambiguity or uncertainty) involves an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context. See Re Tenix at [29].

c. The Tribunal will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and arguable case is made out for more than one contention. See Re Tenix at [31].

d. However, the Tribunal must make a positive finding that the agreement is uncertain or ambiguous. Being satisfied of ambiguity or uncertainty on a prima facie basis is not sufficient. See CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57].

e. It is not sufficient that there are rival contentions as to the proper construction of the terms of the agreement. Such contentions may be self serving. The Tribunal’s task is to mark an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. See Re Civil Construction Corporation Enterprise Agreement (Ross VP, 13 October 2002, PR939346); SJ Higgins v CFMEU (Williams SDP, 2 May 2001, PR903843); RE CFMEU Appeal (Full Bench, 25 February 1999, Print R2431).

f. In terms of the second stage of the process, once an ambiguity or uncertainty has been identified, in exercising the discretion of the Tribunal whether or not to vary the agreement, the Tribunal is to have regard to the mutual intention of the parties at the time the agreement was made. See Re Tenix at [32].’

[9] The question before me is, essentially, whether the phrase ‘in conjunction with’ is capable of having the different meanings claimed by the applicant. Given the decision in CSX v Tully it is clear that the phrase may be read in such a way to indicate that the two documents (the award and the Agreement in this case) are to be read as separate documents both with application to the employees concerned. That is, given the meaning in CSX v Tully, the provisions of the award would continue to apply to the employees along with the terms of the Agreement. It was the intention of the parties that the phrase ‘in conjunction with’ would incorporate into the Agreement those terms of the award that were not inconsistent with a term of the Agreement. The phrase ‘in conjunction with’ is thus capable of the two meanings put by the applicant.

[10] In the circumstances, I find that there is an uncertainty or ambiguity of the kind envisaged by s.217 of the Act. It is appropriate that I consider approving the proposed variation to rectify the uncertainty or ambiguity. I am satisfied that the variation should be made.

[11] The applicant and the Unions have reached agreement on an appropriate form of words (see paragraph [2]) to replace clauses 5.1 and 5.2 in the Agreement, which are uncertain or ambiguous because of the use of the phrase ‘in conjunction with’. The parties agree that the agreed terms of the variation properly convey their mutual intention at the time the Agreement was made.

[12] The variation as sought by the applicant is approved and will take effect from 3 September 2013.

<Price code C, AE887741  PR540844>

 1   Fosterville Gold Mine Pty Ltd [2011] FWA 316.

Printed by authority of the Commonwealth Government Printer