[2018] FWC 5823 [Note: An appeal pursuant to s.604 (C2018/5286) was lodged against this decision. - refer to Full Bench decision dated 11 January 2019 [[2019] FWCFB 161] for result of appeal.]

FAIR WORK COMMISSION

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)

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 17 SEPTEMBER 2018

Application to vary an enterprise agreement to remove an ambiguity or uncertainty – Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 Off Site – scope clause – concrete manufacturing operations – common intention – ordinary meaning – no ambiguity or uncertainty – application dismissed

[1] On 27 November 2017 an employer, Bianco Walling Pty Ltd trading as Bianco Precast (Bianco) applied to the Fair Work Commission (the Commission) for variation of the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Off Site (the 2016 Agreement) to remove an ambiguity or uncertainty. The application was made pursuant to section 217 of the Fair Work Act 2009 (the FW Act).

[2] Bianco is the employer party to the 2016 Agreement. It has standing to make this application. 1

[3] Bianco seeks to vary clause 1.2 of the 2016 Agreement. Clause 1.2 is situated in Part 1 of the 2016 Agreement headed ‘Administration’. Clause 1.2 is commonly referred to as a scope clause. It provides:

“This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco employees that are engaged in the classifications contained in this agreement who work in Bianco’s concrete manufacturing operations, including the erection of these products on-site and the installation of props and frames (employees).”

[4] Bianco claims that the clause is uncertain and ambiguous. It seeks an order deleting the phrase “concrete manufacturing operations” and inserting in lieu the words “Pre-cast division”.

[5] In 2017 a trade union, the Construction Forestry Mining and Energy Union (CFMEU) (as it then was) made a claim on Bianco that the 2016 Agreement applied to an employee working in Bianco’s Structural division. As this decision sets out, historically and currently, Bianco apply the Agreement to its Pre-cast division only, not its Structural division (nor its Civil division). Bianco have rejected that claim. It responded by making this application.

[6] Although not covered by the 2016 Agreement, the CFMEU sought to be heard on this application. I considered the CFMEU to have a material interest and granted leave for the CFMEU to participate in a conference and subsequently in the hearing of the matter.

[7] I conducted a conference of Bianco and the CFMEU on 1 February 2018 at which time the matter did not resolve.

[8] Following the conference, I issued directions on 6 April 2018 and listed the matter for hearing and determination on 25 June 2018.

[9] By decision dated 24 April 2017 I granted Bianco permission to be represented by a legal practitioner at the hearing…

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: [2018] FWC 5823
Decision Date: 17 SEPTEMBER 2018

CaseChat Overview and Summary

In the case of Bianco Walling Pty Ltd, the respondent sought to have the Federal Court vary an enterprise agreement to eliminate an ambiguity or uncertainty. The applicant, Bianco Walling Pty Ltd, T/A Bianco Precast, was seeking to remove an ambiguity from clause 1.1 of the 2016 Enterprise Agreement which specified the scope of the agreement. The dispute centred on whether certain concrete manufacturing operations were covered by the agreement. The court was required to interpret the common intention of the parties and determine whether the scope clause was ambiguous or uncertain.

The primary issue for the court was to ascertain whether there was an ambiguity or uncertainty in the scope clause of the enterprise agreement. The respondent argued that the clause was ambiguous and uncertain because it did not clearly define the extent of concrete manufacturing operations covered by the agreement. The applicant, however, contended that the ordinary meaning of the clause did not give rise to any ambiguity or uncertainty. The court had to examine the language of the clause, the context in which it was written, and the common intention of the parties to determine whether the clause was clear and unambiguous.

After considering the submissions and evidence from both parties, the court found that there was no ambiguity or uncertainty in the scope clause of the enterprise agreement. The court held that the ordinary meaning of the clause was clear and that it did not give rise to any uncertainty. The court also noted that the common intention of the parties was to cover a specific range of concrete manufacturing operations. As such, the court dismissed the application to vary the enterprise agreement.

The final orders of the court were that the application to vary the enterprise agreement was dismissed and that there was no ambiguity or uncertainty in the scope clause of the agreement. The court's decision provided clarity on the extent of concrete manufacturing operations covered by the agreement and ensured that the common intention of the parties was upheld.

Orders