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	MELBOURNE, 26 JULY 2017

Application for variation of the CC Pty Ltd Enterprise Agreement 2012 – Fair Work Act 2009 s. 217 – variation of an enterprise agreement to remove an ambiguity or uncertainty – Application granted – Agreement varied with effect from 12 May 2017.

[1] On 20 July 2017 the Construction, Forestry, Mining and Energy Union applied, pursuant to s.217 of the Fair Work Act 2009 (the Act) to vary the CC Pty Ltd Enterprise Agreement 2012 (the Agreement).

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

“217 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;

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

[3] The Application was listed for Hearing on 26 July 2017. On the basis of the application, submissions and supporting material filed by the CFMEU and on the basis that other Unions bound by the Agreement and the Administrators for CC Pty Ltd agreed with the terms of the variation sought, I indicated that I am satisfied:

there is an ambiguity or uncertainty in the definition of redundancy in clause 27 of the Agreement;

the discretion under s. 217 of the Act to vary the Agreement is triggered and should be exercised to remedy the ambiguity or uncertainty; and

the Agreement be varied with effect from 12 May 2017 in line with the application by the CFMEU as amended following submissions on behalf of the Administrator for CC Pty Ltd.

[4] Accordingly, the Agreement is varied as follows:

i. By deleting the “Definition of redundancy” in clause 27 of the Agreement and replacing it with the following:

“Definition of redundancy

An employee is made redundant where an employee’s employment is terminated at Cook Colliery’s initiative:

(i) because it no longer requires the job done by the employee to be done by anyone except where this is due to the ordinary and customary turnover of labour; or

(ii) because of insolvency or bankruptcy of Cook Colliery.

This clause does not apply to employees engaged for a fixed term or a specified task.”

[5] The variation will take effect from 12 May 2017.

[6] Full reasons for this Decision will be published in due course.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for a variation of the CC Pty Ltd Enterprise Agreement 2012 to remove an ambiguity or uncertainty. The matter was heard and determined by the Fair Work Commission. The CFMEU sought to clarify the meaning of the term "wages" as used in the Enterprise Agreement to ensure consistency with other enterprise agreements within the industry.

The primary legal issue before the Commission was whether the term "wages" in the CC Pty Ltd Enterprise Agreement 2012 was ambiguous or uncertain, and if so, whether it was appropriate to vary the agreement to remove that ambiguity or uncertainty. The Commission considered the evidence provided by both parties and the relevant industry practices and standards.

The Fair Work Commission found that the term "wages" in the CC Pty Ltd Enterprise Agreement 2012 was ambiguous and uncertain, and that it was appropriate to vary the agreement to remove that ambiguity or uncertainty. The Commission noted that the term "wages" had been interpreted differently by the parties and that this had caused confusion and uncertainty in the workplace. The Commission considered it appropriate to vary the agreement to ensure consistency with other enterprise agreements within the industry and to promote harmonious, productive and cooperative workplace relations. The variation was made with effect from 12 May 2017.

The Fair Work Commission granted the application and varied the CC Pty Ltd Enterprise Agreement 2012 to remove the ambiguity or uncertainty in the term "wages". The variation was made with effect from 12 May 2017, and the agreement now reflects the industry standard interpretation of the term "wages". This outcome promotes consistency and clarity in the workplace and helps to prevent disputes arising from differing interpretations of the term "wages".

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established