Application to vary an enterprise agreement – ambiguity or uncertainty (s 217) – error, defect or irregularity (s 218A) – Workzone Traffic Control Pty Ltd Enterprise Agreement 2009 – casual employees – rate of pay – compliance notice by regulator – pay rates in appendix – textual considerations – surrounding circumstances – ambiguity found – uncertainty found – unnecessary to determine s 218A issue – operative date – retrospectivity – application granted

By application dated 13 July 2022 as amended on 6 January 2023 Workzone Traffic Control Pty Ltd (Workzone) applied under s 217 of the Fair Work Act 2009 (Cth) (FW Act) to vary an enterprise agreement to remove an ambiguity or uncertainty.

The subject of the application is the Workzone Traffic Control Pty Ltd Enterprise Agreement 2009 (the Agreement).

Workzone seek an order varying cl 7.4.5 of the Agreement (Casual Employment).

It seeks a variation retrospective to the date the Agreement commenced, being 4 February 2010.

In the alternative, Workzone seeks an order under either s 218A or s 602 of the FW Act to correct an obvious error, defect or irregularity.

Background

It is appropriate to briefly outline the application’s somewhat unusual litigation history.

Workzone’s application as first filed was brought under s 217 or, in the alternative, s 602 of the FW Act. The s 602 application was not pressed at first instance in light of a Commission full bench decision in Advantaged Care Pty Ltd v Health Services Union.[1]

At an early stage in proceedings the then Australian Building and Construction Commissioner (ABCC) intervened under s 110 of the Building and Construction Industry (Improving Productivity) Act 2016 and opposed the application (an inspector having earlier issued a compliance notice on the employer).

I issued directions on 27 July 2022.

No employee organisations are covered by the Agreement and none were served nor appeared. I directed that Workzone serve its application on current employees. Workzone did so. That notwithstanding, no employee interests appeared.

By consent, I granted Workzone and the ABCC permission to be represented.

Two days prior to the 9 December 2022 hearing, parts of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) came into operation (amending Act).

The amending Act abolished the Office of the ABCC and introduced transitional arrangements to that effect. Part 3 of Chapter 9 of the Building and Construction Industry (Improving Productivity) Act 2016 (which includes s 110) was repealed. The amending Act (s 326) continued the operation of the ABCC’s compliance notice that forms part of the background narrative to this matter.

Under Schedule 1 Part 3 (s 324) of the amending Act the ABCC’s intervention in proceedings before the Commission was continued by the Fair Work Ombudsman (FWO) on such terms as…

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.

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Details

AGLC: Application by Workzone Traffic Control Pty Ltd [2023] FWCA 758
Case: [2023] FWCA 758
Decision Date: 9 MARCH 2023

CaseChat Overview and Summary

Workzone Traffic Control Pty Ltd applied to the Fair Work Commission for an order to vary its enterprise agreement, specifically addressing the rates of pay for casual employees. The dispute arose following a compliance notice by a regulator, which indicated that the pay rates specified in the agreement's appendix were incorrect. The Fair Work Commission was tasked with determining whether the agreement was ambiguous or uncertain, potentially warranting a variation under section 217 of the Fair Work Act 2009, and whether there was an error, defect, or irregularity warranting a variation under section 218A.

The central legal issues involved interpreting the agreement's provisions concerning casual employees' pay rates and examining whether the agreement was ambiguous or uncertain. The Commission considered textual elements, such as the wording of the agreement and its appendix, as well as surrounding circumstances, including the regulator's compliance notice. The Commission found that the agreement was ambiguous and uncertain due to discrepancies between the text and the appendix and the regulator's findings. The court did not need to address whether the agreement contained an error, defect, or irregularity as the ambiguity and uncertainty findings were sufficient to grant the application.

The Fair Work Commission granted the application to vary the enterprise agreement. It determined that the agreement was ambiguous and uncertain, leading to a need for correction. The Commission decided not to address the potential error, defect, or irregularity under section 218A because the findings of ambiguity and uncertainty were decisive. The Commission also ruled on the retrospective effect of the variation, specifying that the changes would apply from a date certain in the past. The final order mandated that the enterprise agreement be amended to correct the pay rates for casual employees, with the changes to take effect retrospectively from the date identified by the regulator.

Orders