Bradnam’s Windows and Doors Pty Ltd

[2019] FWCA 979

[2019] FWCA 979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Bradnam’s Windows and Doors Pty Ltd
(AG2019/100)

BRADNAM’S WINDOWS & DOORS PTY LTD (DANDENONG SOUTH MANUFACTURING) AND AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 15 FEBRUARY 2019

Application for variation of the Bradnam’s Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers’ Union Enterprise Agreement 2018 because of ambiguity or uncertainty; appropriate that uncertainty be removed; new provisions inserted; agreement varied.

[1] An application has been made by Bradnam’s Windows and Doors Pty Ltd (Applicant) pursuant to s.217 of the Fair Work Act 2009 (Act) to vary the Bradnam’s Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers’ Union Enterprise Agreement 2018 1 (Agreement) to remove ambiguity and uncertainty.

[2] The Australian Workers’ Union is covered by the Agreement and supports the application. The parties were directed to file joint submissions in support of the application for the matter to then be determined on the papers without the need for a hearing.

[3] The application proposes a variation to clauses 1.1, 2.1(a) and 14.3 of the Agreement in order to amend the specified location in the Agreement from the Dandenong South premises to 46 Lathams Road, Carrum Downs to clarify that the Agreement is to apply to the employees working at the Carrum Downs site.

[4] The Agreement was lodged for approval with the Commission on 6 August 2018 and was subsequently approved on 23 November 2018. In the meantime, the Applicant relocated its manufacturing operations from 9 Quality Drive, Dandenong South to 46 Lathams Road, Carrum Downs. The Applicant does not operate from the Dandenong South site. The Agreement does not on its face cover the employees working at the Carrum Downs site. It is submitted that this has caused confusion and uncertainty amongst employees as to the appropriate industrial instrument that is the source of their terms and conditions of employment. 2

[5] In order that the uncertainty identified is removed, the Applicant proposes the following amendments.

[6] Firstly, it proposes that the definition of Company contained in clause 1.1 be amended by removing the words “(Dandenong South Manufacturing), 9 Quality Drive Dandenong South Vic 3175.”

[7] Secondly, it proposes that clause 2.1(a) be varied by deleting the address and inserting the current location.

[8] Thirdly, it proposes to amend clause 14.3 by deleting “(note this refers specifically to the 9 Quality Drive Dandenong South Site only).”

[9] Section 217 of the Act provides the following:

“Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1)  The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

   (a)  one or more of the employers covered by the agreement;

   (b)  an employee covered by the agreement;

   (c)  an employee organisation covered by the agreement.

(2)  If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[10] The Applicant is the employer covered by the Agreement and therefore has standing to make the application.

[11] As seems clear from the text of s.217, the discretion to vary an agreement may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the agreement. The principles that are to be applied in considering an application under s.217 may be shortly stated:

•  The Commission should approach an application in two stages. First, as a jurisdictional pre-requisite, it should identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider whether to exercise its discretion to vary the agreement the subject of the application; 3 

•  The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context; 4 

•  The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention; 5 

•  However, the Commission must make a positive finding that an agreement the subject of an application under s.217 is ambiguous or uncertain. Prima facie satisfaction of ambiguity or uncertainty is not sufficient; 6 

•  The mere existence of rival contentions as to the proper construction of the terms of an agreement will also be an insufficient basis to conclude the existence of ambiguity or uncertainty. Such contentions may be self-serving. The task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning; 7 and

•  Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made. 8 

[12] At the time that the Agreement was made, the Applicant operated its manufacturing business at the Dandenong South premises. The employees approved the Agreement specifying the location at which they were then employed. The relocation of the Applicant’s manufacturing business to another site has subsequently created uncertainty as to coverage of the Agreement. The manufacturing business in which the employees were employed when the Agreement was made has moved to a new location along with the employees employed in the business. Save for the relocation, it is not evident that there is any change to the business or to the work performed by the employees in the business. In the circumstances, I am satisfied that the location references in the Agreement create an uncertainty which engages with s.217 of the Act. I am also satisfied that I should amend the Agreement to remove the uncertainty and that it is appropriate to do so in the manner proposed.

[13] In order to remove an uncertainty, I propose to vary the Agreement as outlined earlier. The application is granted and a variation order is issued separately.

DEPUTY PRESIDENT

 1   AE500845

 2   Outline of joint submissions dated 12 February 2019 at [23]

 3   See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]

 4   Ibid at [29]

 5   Ibid at [31]

 6   See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]

 7   See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v CFMEU (PR903843); Re CFMEU Appeal (Print R2431)

 8    See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]

Printed by authority of the Commonwealth Government Printer

<AE500845  PR704967>