DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6253)

THE TRUSTEE FOR THE KARZAC DISCTRETIONARY TRUST T/AS QUICK-FIX ALUMINIUM AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 30 NOVEMBER 2018

Application for variation of the Clause 5.2, Appendix 4 of the The Trustee for the Karzac Discretionary Trust T/As Quick-Fix Aluminium and CFMEU Union Collective Agreement 2018-2019.

[1] On 9 November 2018 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to vary the The Trustee for the Karzac Discretionary Trust T/As Quick-Fix Aluminium and CFMEU Union Collective Agreement 2018-2019 (the Agreement) under s.217 of the Fair Work Act 2009 (the Act).

[2] The CFMMEU seeks to vary clause 5.2 of appendix 4 of the Agreement, which sets out the employer’s Impairment Policy. It currently reads:

“5.2 Employees shall:

(a) Co-operate reasonably with the employer in the implementation of this policy;

(b) If any employee reasonably believes that any person on the site may be a health and safety risk to themselves or others they should inform their employer and their relevant Preliminary Impairment Assessor (PIA) of this belief;

working;

(d) Ensure that they do not work, if they believe that they may be impaired;

(e) Consult their doctor or pharmacist about possible side effects of using prescribed or over-the-counter medication;

(f) Inform their employer, their Preliminary Impairment Assessor (PIA); and

(g) Delegate, if they have been made aware by their treating doctor or pharmacist of possible impairment as a side effect of medication, or if they feel impaired by medication.” (Emphasis added)

[1] In particular, the variation sought by the CFMMEU relates to clause 5.2 (f) and (g). The CFMMEU submitted that the words “; and (g) Delegate,” were the result of a clerical error and were not intended to be included in the Agreement by the parties covered by it. Clause 5.2 (f) requires an ‘and’ in place of the first comma after ‘employer’ to clarify its meaning. Further, it is submitted that read independently, (f) and (g) are not complete phrases and do not make sense.

[2] The proposed variation would remove the words ‘and’ and ‘Delegate’ and merge cl 5.2(f) and cl 5.2 (g) into a single clause.

[3] The employer consents to the proposed changes.

[4] Having regard to the consent position and the benefit of making cl 5.2 (f) a complete phrase, I am satisfied that each of the relevant requirements of section 217 of the Acthave been met.

[5] In order to remove uncertainty in relation to the particular provisions of the Agreement, I order that the Agreement be varied as follows:

1. Delete clause 5.2(f) and clause 5.2(g) from Appendix 4.

2. Insert clause 5.2(f) into Appendix 4, which will now read:

“5.2(f) Inform their employer and their Preliminary Impairment Assessor (PIA) if they have been made aware by their treating doctor or pharmacist of possible impairment as a side effect of medication, or if they feel impaired by medication.”

[1] Accordingly, the application is granted and the variation, as sought, will operate from today, 30 November 2018.

COMMISSIONER

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The applicants, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought to vary the terms of Clause 5.2, Appendix 4 of the Quick-Fix Aluminium and CFMEU Union Collective Agreement 2018-2019. The dispute arose from a disagreement between the union and the employer regarding the interpretation and application of the clause, which pertains to specific employment terms. The matter was brought before the Fair Work Commission, an Australian federal statutory authority responsible for the resolution of employment disputes.

The legal issues before the Commission were centred on the interpretation of Clause 5.2, Appendix 4, and whether the union's proposed variation was consistent with the principles of good faith bargaining and the overall purpose of the collective agreement. The union argued that the clause was ambiguous and that its proposed variation would promote better working conditions and address issues of clarity and fairness. The employer, represented by the Trustee for the Karzac Discretionary Trust, contended that the union's proposed changes would create uncertainty and potentially undermine the integrity of the agreement.

After reviewing the submissions and evidence from both parties, the Commission found that the union's proposed variation of Clause 5.2, Appendix 4 was justified. The Commission emphasised the importance of good faith bargaining and the need to resolve disputes in a manner that promotes the best interests of the employees. The Commission held that the union's proposed changes would improve clarity and fairness within the agreement, and did not undermine its overall purpose. Consequently, the Commission approved the variation of Clause 5.2, Appendix 4 in accordance with the union's proposal.

The Fair Work Commission's decision resulted in the variation of Clause 5.2, Appendix 4 of the Quick-Fix Aluminium and CFMEU Union Collective Agreement 2018-2019, as proposed by the union. This outcome highlights the importance of good faith bargaining and the Commission's role in resolving employment disputes in a manner that promotes the best interests of employees.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established