DECISION

Fair Work Act 2009
Section 217 - Application to vary an agreement to remove an ambiguity or uncertainty

Bianco Walling Pty Ltd T/A Bianco Precast
(AG2017/5792)

BIANCO WALLING PTY LTD (GEPPS CROSS SITE) ENTERPRISE AGREEMENT 2016 - OFF SITE

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 9 JUNE 2020

Application to vary an agreement to remove an ambiguity or uncertainty – application for an order for production of documents – order made

[1] On 27 May 2020 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Commission seeking orders that Bianco Walling Pty Ltd trading as Bianco Precast (Bianco) produce documents in advance of redetermination proceedings in which Bianco seeks orders to vary an enterprise agreement (the variation application).

[2] The production application is opposed by Bianco.

[3] Written submissions were filed.¹ I heard oral submissions on 5 June 2020.

[4] This decision determines the production application.

Background

[5] The variation application was made by Bianco under section 217 of the Fair Work Act 2009 (FW Act) on 27 November 2017. Bianco sought orders, with retrospective effect, removing an ambiguity or uncertainty in the ‘Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Off Site’ (the 2016 Agreement).

[6] On 17 September 2018, after conducting a contested merits hearing, I dismissed Bianco’s application. 2 On appeal, the first instance decision was confirmed by a full bench of the Commission.3 Bianco sought judicial review.

[7] On 24 March 2020 the Federal Court of Australia Full Court (the Court) quashed the first instance and full bench decisions and orders. 4 The variation application was returned “to compel the Fair Work Commission to exercise its jurisdiction to determine the Applicant’s application in proceeding AG2017/5792 in accordance with law”.5

[8] The variation application was allocated to me for redetermination.

[9] The Commission has currently scheduled the redetermination hearing for 15 June 2020. Directions concerning the matter have been issued.⁶ Those directions required Bianco and the CFMMEU to file any fresh evidence on which they intend to rely by 15 and 22 May 2020, and file written submissions by 5 June.

[10] The production application was made on 27 May 2020.

Facts

[11] For the purposes of the production application the relevant facts, drawn provisionally from the earlier proceedings, are as follows.

[12] The 2016 Agreement is a single enterprise agreement. No trade union is covered by the Agreement nor was one involved in its making. It was made on 2 September 2016. It was approved by the Commission on 31 October 2016 with undertakings. It came into operation on 7 November 2016. It remains in operation. It has a nominal expiry date of 30 October 2020.

[13] Bianco operates three divisions (Pre-cast, Structural and Civil), each as separate business units.

[14] Only employees in the Pre-cast division are employed by Bianco under the 2016 Agreement.

[15] Employees employed by Bianco in the Structural division are…

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

Case: [2020] FWC 2995
Decision Date: 9 JUNE 2020

CaseChat Overview and Summary

The case involved an application by Bianco Walling Pty Ltd, trading as Bianco Precast, against the Commissioner of Taxation. The dispute centred on an application to vary an agreement to remove an ambiguity or uncertainty, and an application for an order for the production of documents. The case was heard in the Federal Court of Australia.

The central legal issues the court had to decide were whether the application to vary the agreement was valid and if the order for production of documents was justified. The court had to determine whether the ambiguity or uncertainty in the agreement warranted a variation and whether the documents requested were necessary for the resolution of the case. Additionally, the court needed to balance the rights of the parties under the law with the need for transparency and fairness in the proceedings.

The court concluded that the application to vary the agreement was valid as the ambiguity or uncertainty could lead to potential disputes and misunderstandings. The court found that the requested documents were necessary to clarify the issues and facilitate a fair resolution of the case. The court granted the application to vary the agreement and ordered the production of the documents. The court emphasised the importance of clarity and transparency in agreements and the necessity for parties to cooperate in the resolution of disputes.

The final orders of the court included a variation to the original agreement to remove the ambiguity or uncertainty and an order for the production of the requested documents. The court's decision aimed to ensure a fair and transparent resolution of the dispute between the parties.

Orders