Application by Egans Asset Management Pty Ltd - [2011] FWA 4129

[2011] FWA 4129

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity

Application by Egans Asset Management Pty Ltd
(AG2011/9309)

Road transport industry
COMMISSIONER LEWIN	MELBOURNE, 8 JULY 2011

Transitional Instrument - ambiguity or uncertainty - application to vary - principles - mutual intention of parties at time Agreement made

[1] This decision concerns an application to vary the Egan’s Asset Management Pty Ltd Employee Collective Agreement (AC314330/ CAEN084889274) (the Agreement). The applicant is Egans Asset Management Pty Ltd (Egans). The Agreement is a workplace agreement made and approved under the provisions of the Workplace Relations Act 1996 (the WR Act).

[2] The Agreement is a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Schedule 3 of the Transitional Act provides for the continued existence of instruments made under the WR Act as transitional instruments including workplace agreements made under that Act.

[3] Part 3 of Schedule 3 of the Transitional Act provides for the variation of a transitional instrument. In particular Item 10 of Part 3 of that Act provides as follows:

“10 All kinds of transitional instrument: variation to remove ambiguities etc.

(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; or

(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.”

[4] Egans’ application relies upon Item 10(1)(a) above. Egan’s submit that the provisions of Clauses 1(a) and (b) of the Agreement are ambiguous and/ or uncertain. Clause 1 of the Agreement is set out below:

“1. Parties

(a) Egans Asset Management Pty Ltd (Egans); and

(b) The employees engaged by Egans in any of the positions referred to in the Classification Structure in Schedule 1 of this Agreement (“you/your/the Employees”).”

[5] Egans have explained the circumstances which give rise to the application in written submissions as follows:

“At the time the Agreement was lodged, the only employees so engaged were engaged in Victoria. Egans’ operations have since expanded to include engagement of employees in the Agreement’s Classification Structure outside Victoria.

In circumstances where Egans’ operations have expanded, an ambiguity or uncertainty arises as to whether the employees now engaged in Egans’ operations outside Victoria, who fall under the Classification Structure in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Egans Asset Management Pty Ltd

Details

AGLC: Application by Egans Asset Management Pty Ltd [2011] FWA 4129
Case: [2011] FWA 4129
Decision Date: 8 JULY 2011

CaseChat Overview and Summary

The case involved Egans Asset Management Pty Ltd as the applicant seeking to vary a contractual agreement with another party, the specifics of which are not detailed. The dispute arose from an interpretation issue regarding a transitional instrument within the agreement. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the transitional instrument in question was ambiguous or uncertain. If found to be so, the court needed to determine whether it could exercise its discretion to vary the instrument. The court also had to consider the principles that govern such variations, particularly focusing on the mutual intention of the parties at the time the agreement was made.

The court examined the language of the transitional instrument and found it to be ambiguous. It considered the principles of contract interpretation and the mutual intention of the parties, ultimately concluding that the instrument could be clarified. The court exercised its discretion to vary the instrument to reflect the mutual intention of the parties at the time the agreement was made. This decision was based on ensuring that the instrument accurately represented the parties' original intentions, thereby providing clarity and certainty to the agreement.

The court ordered the variation of the transitional instrument to reflect the mutual intention of the parties at the time the agreement was made. This decision provided clarity and certainty to the agreement, allowing it to proceed as originally intended by the parties.

Orders