Association of Professional Engineers, Scientists and Managers, Australia, The v Oceanic Coal Australia Pty Ltd - [2011] FWA 3146

[2011] FWA 3146

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 10 Sch. 3—Variation of transitional instrument

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Oceanic Coal Australia Pty Ltd
(AG2011/7654)

Coal industry
VICE PRESIDENT LAWLER	MELBOURNE, 19 MAY 2011

Application to vary agreement to remove ambiguity or uncertainty - decision turning on its own facts.

[1] This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) pursuant to item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) for an order varying clause 13.2 of the West Wallsend Staff and Deputies Agreement 2007 (Staff Agreement) to remove an ambiguity. The Staff Agreement covers deputies and staff at the West Wallsend Mine (Mine) operated by Oceanic Coal Pty Ltd (Company), part of the Xstrata Group. The CFMEU also appeared but did little more than support the submissions of APESMA.

[2] Item 10 of Schedule 3 to the Transitional Act provides:

“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.”

The dispute giving rise to the application

[3] Clause 13.2 of the Staff Agreement provides:

“13.2 Additional Superannuation

The Company will also make an additional superannuation contribution to Coalsuper in accordance with the below table. This additional contribution will only be made on behalf of full time permanent employees that are employed at West Wallsend at the date of lodgement of this Agreement with the Office of the Employment Advocate (OEA), and are a party to this agreement. The additional contribution will not be made on behalf of full time employees employed after the lodgement date of this Agreement, part time employees, fixed term or specified task employees, temporary employees, casual employees or other employees.

West Wallsend Mine	Description	Superannuation
Classification	Contribution
Group 10	U/M in Charge	$245/wk
Group 8	Mechanical Eng. IC	$245/wk
Electrical Eng. IC
LW Coordinator
Dev. Coordinator
Group 7	Accountant	$240/wk
Undermanager
Personnel Coord.
Senior Surveyor
Group 6	Maintenance Engineer	$235/wk
Group 5	Surveyor	$235/wk
Chief Clerk
Purchasing Officer
Group 4B	Deputy	$230/wk
Group 4A	Control Room Operator	$225/wk
Group 3

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: Association of Professional Engineers, Scientists and Managers, Australia, The v Oceanic Coal Australia Pty Ltd [2011] FWA 3146
Case: [2011] FWA 3146
Decision Date: 19 MAY 2011

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, brought an application to the Federal Circuit Court seeking to have an agreement varied to remove ambiguity or uncertainty. The agreement was between the association and Oceanic Coal Australia Pty Ltd. The nature of the dispute was regarding the interpretation and potential modification of the agreement to ensure clarity in certain terms and conditions, which had led to disagreements between the parties.

The legal issues that the court had to address involved the interpretation of the existing agreement and the authority to vary it to remove ambiguity or uncertainty. The court needed to determine whether there was indeed ambiguity or uncertainty in the agreement that warranted a variation and, if so, what form the variation should take to adequately address the identified issues.

The court found that the decision to vary an agreement to remove ambiguity or uncertainty was highly fact-specific. It examined the language used in the agreement and the context in which it was made, considering the intentions of the parties at the time. The court concluded that while there were some ambiguous terms, the overall agreement was clear in its essential aspects. The court declined to vary the agreement, as the ambiguity was not pervasive enough to warrant such action, and it would be inappropriate to rewrite the agreement based on the court's interpretation. The outcome reflected the court's view that such decisions should turn on their own facts, and general principles should not be rigidly applied without regard to the specific circumstances of each case.

Orders