REASONS FOR DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/2973)

CC PTY LTD ENTERPRISE AGREEMENT 2012

Coal industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 AUGUST 2017

Application for variation of the CC Pty Ltd Enterprise Agreement 2012 – Finding that Agreement is ambiguous or uncertain – Finding that Agreement should be varied – Variation appropriate to give effect to objectively ascertained mutual intention of the parties.

1. OVERVIEW

[1] On 20 July 2017, the Construction, Forestry, Mining and Energy Union (CFMEU) applied under s. 217 of the Fair Work Act 2009 (the Act) for a variation to the CC Pty Ltd Agreement 2012 (the Agreement) to remove an ambiguity or uncertainty with respect to the definition of redundancy in the Agreement. The application was listed for hearing on 26 July 2017 and in a Decision issued on that date, I varied the Agreement. My reasons for varying the Agreement and for the urgency with which this application has been dealt with are set out below.

[2] The Agreement applies to CC Pty Ltd and its employees working in production, processing, engineering, technical and supervision functions within the classifications in the Agreement. On 7 March 2017, the underground operations of the mine became inundated with water. Employees were stood down without pay for a considerable period. On 12 May 2017, the Board of CC Pty Ltd formed a view that the Company was insolvent and appointed Mr Grant Sparks, Mr Stephen Longley and Mr Martin Ford, PPB Advisory, as Administrators to the Company and to a number of related entities. The Administrators have responded to the Application to vary the Agreement.

[3] On and from 16 May 2017 some 220 employees were made redundant on the basis of the insolvency of CC Pty Ltd including many employees who had been stood down without pay since February 2017. 150 of these employees are covered by the Agreement subject of the variation application. A number of these employees are members of the CFMEU, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Association of Professionals Engineers, Scientists and Managers, Australia (APESMA). Those Unions were bargaining representatives for the Agreement and are covered by it. 1

[4] Since the redundancies were implemented, an issue with the wording of the provisions in the Agreement dealing with redundancy has come to light. Essentially, the definition of redundancy in clause 27 of the Agreement excludes circumstances where an employee’s employment is terminated because of insolvency or bankruptcy of CC Pty Ltd. The definition of redundancy in the Agreement is not consistent with the definition of redundancy in s. 119(1) of the Act or clause 14.2 of the Black Coal Award 2010 (the Award) which covered the redundant employees while they were employed by CC Pty Ltd. Both definitions specifically provide…

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.

Keep reading for free

Create a free CaseChat account to read Construction, Forestry, Mining and Energy Union and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWCA 4055
Decision Date: 3 AUGUST 2017

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union and CC Pty Ltd. The union sought a variation of the CC Pty Ltd Enterprise Agreement 2012, claiming that the agreement was ambiguous or uncertain. The union argued that the agreement should be varied to give effect to the objectively ascertained mutual intention of the parties. The court was required to determine whether the enterprise agreement was indeed ambiguous or uncertain and, if so, whether a variation was appropriate to reflect the mutual intentions of the parties.

The primary legal issue before the court was whether the enterprise agreement contained ambiguous or uncertain terms that warranted a variation. The union contended that certain provisions of the agreement were unclear and led to disputes between the parties. The court had to interpret the terms of the agreement and decide if they were ambiguous or uncertain. If ambiguity or uncertainty was found, the court also had to determine whether a variation of the agreement was appropriate and necessary to give effect to the parties' mutual intentions.

In delivering its decision, the court found that the enterprise agreement contained ambiguous or uncertain terms. The court concluded that these ambiguities led to disputes and confusion between the parties. The court then considered whether a variation was necessary and appropriate to give effect to the parties' mutual intentions. The court held that a variation was warranted to resolve the ambiguities and uncertainties, thereby ensuring that the agreement would operate as the parties originally intended. The court's reasoning was based on the objective ascertainment of the mutual intentions of the parties, which it found to be reflected in the proposed variation.

The final orders of the court included a variation of the CC Pty Ltd Enterprise Agreement 2012 to address the ambiguous or uncertain terms. The specific changes to the agreement were intended to reflect the objectively ascertained mutual intentions of the parties, thereby resolving the disputes that arose from the ambiguities. The court's decision aimed to provide clarity and certainty to the terms of the enterprise agreement, ensuring that it would operate as intended by both the union and the employer.

Orders