Construction Solutions Pty Ltd

[2024] FWCA 2937

[2024] FWCA 2937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Construction Solutions Pty Ltd

(AG2024/3014)

INFRABUILD MESH NATIONAL ENTERPRISE AGREEMENT 2021 - 2025

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 13 AUGUST 2024

Application for variation of the Infrabuild Mesh National Enterprise Agreement 2021 – 2025.

1. An application has been made by the Construction Solutions Pty Ltd (Applicant) pursuant to s.217 of the Fair Work Act 2009 to vary the Infrabuild Mesh National Enterprise Agreement 2021 – 2025 to remove ambiguity and uncertainty.

1. The Agreement was approved by the Commission on 20 July 2021 and came into operation on 27 July 2021. It has a nominal expiry date of 30 June 2025.

1. The application seeks a variation to clause 3.1 of the Agreement concerning coverage which currently provides:

“3.1This Agreement covers and applies to the Company and all of its employees, at the Infrabuild Mesh sites (Mons St, Revesby NSW and Bradman St, Acacia Ridge QLD) who are employed to work in the Trainee, Operator or Technician classifications listed in the Agreement.”

1. The Applicant claims that an ambiguity and uncertainty arise following its decision to relocate its Revesby site to Mayfield and seeks to vary clause 3.1 by inserting an additional site: ‘Ingall St, Mayfield NSW’.

1. The Applicant submits that the Agreement was intended to cover all employees within the Applicant’s Mesh manufacturing sites within Queensland and New South Wales under the classifications listed in the Agreement. The Applicant submits that the variation, if made, would allow the terms and conditions provided in the Agreement to apply to prospective employees working at the Mayfield site and address the uncertainty for the employer and employees caused by the impending closure of the Revesby site.

1. The Australian Workers’ Union, being the bargaining representative for the Agreement, supports the application.

Consideration

1. Section 217 of the Act provides:

“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;
(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.”

1. The Applicant is the employer covered by the Agreement and has standing to make the application.

1. The principles to be applied by the Commission when determining s.217 applications were summarised by Deputy President Gostencnik in The Trustee for ePharmacy Unit Trust T/A ePharmacy[1] as follows:

·   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;[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 are construed having regard to their context;[3]

·   The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions and an arguable case is made out for more than one contention;[4]

· However, the Commission must make a 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;[5]

·   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 judgement as to whether the wording of a provision is susceptible to more than one meaning;[6]

·   However, the task of the Commission is to determine whether a provision in an agreement is ambiguous or uncertain. That task is distinct from determining the proper construction or true meaning of a provision of an agreement.[7]

·   A provision in an agreement may be ambiguous even though it is capable of interpretation and it is not necessary for the Commission to interpret a provision of an agreement to reach a conclusion concerning the presence of ambiguity or uncertainty.[8] Consequently there is no need for the Commission to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements. Moreover, the Commission is obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, “equity, good conscience and the merits of the matter” (s 578) and it is not bound by the rules of evidence and procedure in relation to a matter (s 591). These provisions of the Act apply to the discharge by the Commission’s functions under s 217(1),[9] including by allowing the Commission to have regard to evidence of the parties’ common intention and to the history of agreement provision as part of the “equity, good conscience and the merits” of the matter.[10]

·   Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission may also have regard to the mutual or common intention of the parties at the time the agreement was made.[11]

1. I am satisfied that there is an uncertainty as to as to the coverage of the Agreement arising from the relocation of the Applicant’s NSW site and the proposed variation will correct the uncertainty in a manner that is consistent with the understanding held by the parties at the time the Agreement was made.

Conclusion

1. The variation is approved and an order effecting the variation will be separately issued. In accordance with s.217(2) of the Act, the variation operates from 13 August 2024.

DEPUTY PRESIDENT

[1] [2021] FWC 3447.

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

[3] Ibid at [29].

[4] Ibid at [31].

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

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

[7] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [67].

[8] Ibid.

[9] Ibid at [68].

[10] Ibid.

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

Printed by authority of the Commonwealth Government Printer

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