Application by Corinthian Industries (Australia) Pty Ltd

[2022] FWCA 3497

[2022] FWCA 3497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Application by Corinthian Industries (Australia) Pty Ltd

(AG2022/4126)

CORINTHIAN INDUSTRIES SA ENTERPRISE AGREEMENT 2022

Timber and paper products industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 11 OCTOBER 2022

Application for variation of the Corinthian Industries SA Enterprise Agreement 2022 to remove an ambiguity or uncertainty – typographical error affecting coverage – Agreement varied retrospectively

1. An application has been made by Corinthian Industries (Australia) Pty Ltd (applicant or Corinthian Industries) pursuant to s 217 of the Fair Work Act 2009 (FW Act) to vary the Corinthian Industries SA Enterprise Agreement 2022 (Agreement) to remove ambiguity or uncertainty.

1. The Agreement was approved by the Commission on 15 September 2022.[1] It came into operation seven days later. As of the date of this decision, it has been in operation for two weeks.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is a bargaining representative for the Agreement and is covered by the Agreement.

1. The applicant seeks that clause 1 “Application and Definition” of Schedule A of the Agreement (concerning redundancies) be varied to replace the words “New South Wales” with “South Australia” such that the provision reads:

“The provisions of this Agreement shall apply to all employees of Corinthian Industries at its site in South Australia in respect of the termination of an employee(s) by reason of…”

Submissions

1. The applicant submits, inter alia, that:

·  the reference to New South Wales in clause 1 of Schedule A is a typographical drafting error;

·  the Agreement is intended to apply solely to the Corinthian Industries’ South Australian operations, as evinced by:

·     the parties covered by the Agreement at clause 3 (which refers to employees employed at the Corinthian Industries’ site in Regency Park, South Australia);

·     the Form F17 lodged by the applicant specifying South Australia as the only State the Agreement would be operating in; and

·     the Applicant’s NSW operations being covered by a separate enterprise agreement, the Corinthian Industries NSW CFMMEU Enterprise Agreement 2022 (NSW Agreement);

·  by varying the Agreement to remove the erroneous reference to New South Wales and replacing it with the correct State (South Australia) the ambiguity and/or uncertainty would be removed; and

·   if the Agreement is not varied in the manner sought, uncertainty would arise if disputed, as to which employees Schedule 1 of the Agreement applies to.

1. The applicant notes that there have been no disputes about clause 1 of Schedule A and seeks that the variation, if granted, operate retrospectively from the operative date of the Agreement, being 22 September 2022.

1. In a conference before me on 10 October 2022, the CFMMEU indicated that it consents to the Agreement being varied in the manner proposed and for the variation, if granted, to operate retrospectively from the operative date of the Agreement.

Consideration

1. Section 217 of the FW Act 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.”

1. The applicant is the employer covered by the Agreement and therefore has standing to make the application.

1. A summary of the principles that are to be applied in considering an application under s 217 was set out by DP Gostencnik in Bradnam’s Windows and Doors Pty Ltd:[2]

“[11] As seems clear from the text of s.217, the discretion to vary an agreement may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the agreement. The principles that are to be applied in considering an application under s.217 may be shortly stated:

·The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement the subject of the application;[3] 

·The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context;[4] 

·The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention;[5] 

·However, the Commission must make a positive finding that an agreement the subject of an application under s.217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient;[6] 

·The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty. Such contentions may be self-serving. The task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning;[7] and

·Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission is to have regard to the mutual

intention of the parties at the time the agreement was made.[8]”

1. In the circumstances, and in light of the consent position reached between the applicant and the CFMMEU, I am satisfied that the words “New South Wales” in clause 1 of Schedule A of the Agreement create an uncertainty as to which employees the Schedule applies to, enlivening s 217 of the FW Act. The uncertainty arises from the fact that clause 1 of Schedule A purports to apply to persons employed in New South Wales whereas the coverage of the Agreement and its substantive clauses apply only to persons employed at the relevant site in South Australia. The inconsistency between the substantive provisions of the Agreement and Schedule 1 as to coverage creates manifest uncertainty.

1. I am well satisfied that it is appropriate to exercise a discretion to vary the Agreement in the terms sought. The Agreement has only just commenced. A substantial period of time exists before its nominal expiry date. It is not in the interests of the employer or persons employed under the Agreement or organisations covered by the Agreement for the error not to be corrected. It is also not in the interests of the employer or persons employed under the NSW Agreement to be referenced in a schedule to an Agreement notionally covering only South Australian operations. A failure to vary the Agreement has the potential to lead to unnecessary and unintended dispute and argument over redundancy entitlements.

1. Although no redundancies have occurred in the short period that the Agreement has been in operation, I am satisfied that there are no adverse consequences to granting an order that the Agreement be varied retrospectively from its date of operation, being 22 September 2022. The period of retrospectivity is short, is reflective of the intention of those that negotiated and made the Agreement and is made by consent. 

1. I will order that the Agreement be varied to remove the uncertainty and that it is appropriate to do so in the manner and from the date proposed.

1. The application is granted and a variation order[9] is issued separately.

DEPUTY PRESIDENT

Appearances:

Mr S Bisshopp, with permission, with Mr M Wright, on behalf of Corinthian Industries (Australia) Pty Ltd

Ms V Wiles with Mr D Kirner, of and on behalf of the Construction, Forestry, Maritime, Mining and Energy Union

Conference details:

2022
Adelaide (by telephone)
10 October

[1] [2022] FWCA 3202

[2] [2019] FWCA 979

[3] See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]

[4] Ibid at [29]

[5] Ibid at [31]

[6] See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]

[7] See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v CFMEU (PR903843); Re CFMEU Appeal (Print R2431)

[8]  See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]

[9] PR746682

Printed by authority of the Commonwealth Government Printer

<AE517430  PR746646>