AWX Pty Ltd; AWX Mining Pty Ltd; AWX Construction & Industrial Pty Ltd; AWX Health Pty Ltd; AWX Agribusiness Pty Ltd; AWX Hospitality Pty Ltd; AWX International Pty Ltd

[2014] FWC 9454

[2014] FWC 9454

FAIR WORK COMMISSION

DETERMINATION

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

AWX Pty Ltd; AWX Mining Pty Ltd; AWX Construction & Industrial Pty Ltd; AWX Health Pty Ltd; AWX Agribusiness Pty Ltd; AWX Hospitality Pty Ltd; AWX International Pty Ltd
(AG2014/7972)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 24 DECEMBER 2014

Application for variation of the Employees - AWX Pty Ltd Certified Agreement 2004.

[1] This determination concerns an application by AWX Pty Ltd, AWX Mining Pty Ltd, AWX Agribusiness Pty Ltd, AWX Construction & Industrial Pty Ltd, AWX Health Pty Ltd, AWX Hospitality Pty Ltd and AWX International Pty Ltd under Schedule 3 of the Fair Work (Transitions Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)to vary the Employees - AWX Pty Ltd Certified Agreement 2004 (“the Agreement”).

[2] Consistent with the limitations on variation application relating to transitional instruments, as defined, under the TPCA Act, the application seeks only to remove an ambiguity or uncertainty in relation to the wording of clause 3 of the Agreement.

[3] In this respect, clause 3 of the Agreement provides as follows:

3. Parties Bound

(a) this agreement shall be binding upon AWX Pty Ltd here in after called the employer and all employees performing work under the following awards, which may otherwise be applicable:-

a. Nurserymans Award – State
b. Civil Construction, Operation and Maintenance General Award
c. Building Construction Industry Award

engaged in any of the employer’s enterprises, operations or establishments in Australia.

(b) So that it is clear, on and from 1 January 2010 this agreement shall be binding upon AWX Pty Ltd (“the Employer”) and any of the employer's employees (“the Employees”), except those employees when performing contract work activities (as defined in the AWX Pty Ltd Employee Collective Agreement 2006) in the Meat Industry.

[4] The agreement was transferred from AWX Pty Ltd (the employer referred to in clause 3 of the Agreement) to the current Applicant on or about 21 June 2012.

[5] The Applicant has accepted that the National Employment Standards apply to the employees who are covered by the Agreement and that the rates of pay afforded by the Agreement cannot be less than those in any Modern Award that would otherwise apply to the employees (dependent on the nature of their work and the industry to which they are assigned).

[6] The application has arisen because clause (a) of the Agreement and clause (b) of the Agreement may not be able to be read conformably, and there has been contemporary concern raised in this regard. The essence of the matter in contest is whether the intended scope of clause (b) of the agreement be read down to the scope set out in clause (a) of the agreement.

[7] For the purposes of removing any ambiguity and uncertainty the Applicant seeks to vary the agreement so as to delete clause 3(a) of the Agreement, as set out above.

[8] It appears to me on the basis of the submissions, prior affidavit material and the specific terms of the Agreement that the parties to the Agreement intended that clause (b) was to operate from 1 January 2010 notwithstanding clause (a) of the Agreement. That is, as of 1 January 2010, clause (b) was to have operative effect to the exclusion of clause (a) of the Agreement.

[9] In view of this, I determine that the Agreement be varied so as to:

• remove all the words in clause 3 of the Agreement following the heading, “Parties Bound”; and



• substitute the following words:

(a) So that it is clear, on and from 1 January 2010 this agreement shall be binding upon AWX Pty Ltd (“the Employer”) and any of the employer's employees (“the Employees”), except those employees when performing contract work activities (as defined in the AWX Pty Ltd Employee Collective Agreement 2006) in the Meat Industry.

SENIOR DEPUTY PRESIDENT

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