Co-operative Bulk Handing Limited T/A CBH Group
[2024] FWCA 1607
•1 MAY 2024
| [2024] FWCA 1607 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Co-operative Bulk Handing Limited T/A CBH Group
(AG2024/1125)
| Grain handling industry | |
| DEPUTY PRESIDENT BINET | PERTH, 1 MAY 2024 |
Application for variation of the CBH Kwinana Zone Maintenance Union Collective Agreement 2023
On 8 April 2024, Co-operative Bulk Handing Limited trading as CBH Group (CBH) filed an application (Application) pursuant to section 217 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). The Application sought that the FWC order that clause 12.2.6 of the CBH Kwinana Zone Maintenance Union Collective Agreement 2023 (Agreement) be varied to remove an ambiguity.
The parties to the Agreement are CBH and the trades and maintenance employees engaged by CBH within the Kwinana Zone (Employees).
The Agreement was negotiated with CBH on behalf of the Employees by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU). The CEPU and the AMWU (together the Unions) are covered by the Agreement.
The Agreement was approved by Commissioner Yilmaz on 30 January 2024.and commenced operation on 6 February 2024 and has a nominal expiry date of 24 March 2026.
The Unions consent to the Application.
Consideration
Section 217 of the Act provides the following:
“Variation of an enterprise agreement to remove an ambiguity or uncertainty
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.
If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”
CBH is an employer covered by the Agreement and therefore has standing to make the Application under s 217(1)(a) of the FW Act.
The discretion to vary an agreement may only be exercised if the FWC is satisfied that an ambiguity or uncertainty exists.[1] The terms ambiguity and uncertainty are not synonymous terms. There may, for example, be uncertainty in an enterprise agreement even when its terms are not ambiguous.[2]
The process of identifying ambiguity or uncertainty involves making an objective assessment of the words used in the provisions under examination. The words used must be construed having regard to their context.[3]
Determining whether a provision in an agreement is ambiguous or uncertain is not the same process as determining the proper construction of a provision of an agreement. As a consequence, the FWC is not bound to only consider those principles developed for the interpretation of enterprise agreements. The FWC is obliged to take into account, amongst other things, the equity, good conscience and the merits of the matter in accordance with section 578 of the FW Act. In doing so, pursuant to section 591 of the FW Act, the FWC is not bound by the rules of evidence nor procedure in relation to the matter. [4]
The mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is not sufficient to indicate ambiguity or uncertainty for the purposes of section 217 of the FW Act.[5] However, the FWC will generally err on the side of finding an ambiguity or uncertainty exists where there are rival contentions advanced and an arguable case is made out for more than one contention.[6]
On the evidence before me I am satisfied that clause 12.2.6 of the Agreement when read with 12.2.5 is ambiguous and uncertain.
Having been satisfied that uncertainty or ambiguity exists it is necessary to decide whether it is appropriate to exercise the discretion to vary the Agreement, and if so, what variations should be made.[7]
In exercising the discretion to vary an agreement, the FWC should have regard to the mutual intention of the parties at the time the agreement was made.[8] The task is to place the parties in the position they intended by their agreement – insofar as the wording of the agreement does not reflect that intention. [9]
The task of identifying the objectively ascertained mutual intention of the parties does not depend on evidence of what each party says they intended. It is a more confined task.[10]
Although a significant factor, the objectively ascertained mutual intention of the parties is not the only consideration. However, it would be unusual for other considerations to weigh in favour of a variation that was inconsistent with the intention of the parties.[11]
The exercise of the discretion conferred on the FWC to vary an agreement which is ambiguous or uncertain does not give rise to a general discretion to determine the matter based on industrial fairness.[12]
Having regard to the mutual intention of the parties as reflected in their joint support for the Application I am satisfied that the deletion of clause 12.2.6 will remove uncertainty and ambiguity and place the parties in the position they intended by their agreement.
An order[13] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [3].
[2] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [75].
[3] [2019] FWCA 979 at [11].
[4] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [68]
[5] Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 [2002] AIRC 531 at [49].
[6] [2019] FWCA 979 at [11], Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [70], Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 [2002] AIRC 531 at [31].
[7] Application by Bradnam’s Windows and Doors Pty Ltd [2019] FWCA 979 at [11], Australian and International Pilots Association [2007] AIRC 303 at [17].
[8] Application by Bradnam’s Windows and Doors Pty Ltd [2019] FWCA 979 at [11], Re Australian and International Pilots Association[2007] AIRC 303 at [17].
[9] Application by Bradnam’s Windows and Doors Pty Ltd [2019] FWCA 979 at [11], Australian and International Pilots Association [2007] AIRC 303 at [17].
[10] Australian and International Pilots Association [2007] AIRC 303 at [18].
[11] Australian and International Pilots Association [2007] AIRC 303 at [17].
[12] Australian and International Pilots Association [2007] AIRC 303 at [17].
[13] PR773757.
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