Contract Resources Pty Ltd T/A Contract Resources - [2022] FWCA 3355

[2022] FWCA 3355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement; s.739—Dispute resolution

Contract Resources Pty Ltd T/A Contract Resources

(AG2022/3077), (C2022/2666)

Contract Resources Pty Ltd (Lytton Refinery) Queensland Enterprise Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT LAKE	BRISBANE, 28 SEPTEMBER 2022

Application to deal with a dispute under an enterprise agreement – application to vary an agreement under s.217 to remove ambiguity or uncertainty – dispute over interpretation of clause 2.6 regarding annual wage increases – Ambiguity identified - varied the Agreement to remove ambiguity.

This decision concerns two applications made by the same parties over a common issue made under the Fair Work Act 2009 (Cth) (FW Act). The first is an application by the Australian Workers’ Union (AWU) for the Commission to determine a dispute between the AWU and Contract Resources (Company) under the relevant dispute resolution procedure contained in the Contract Resources Pty Ltd (Lytton Refinery) Queensland Enterprise Agreement 2021 (Agreement). The dispute is over the interpretation of clause 2.6 of the Agreement which states that the “annual increase of wages will be the greater of 2% or the December CPI”. The dispute centres around the December CPI figure being interpreted as either the quarterly CPI figure for Brisbane or the Annual CPI figure for Brisbane. The AWU contends that the clause means that it is the annual figure for CPI in the December quarter and the Company asserts that it is the quarterly figure CPI. The Company has paid a 2% pay increase following the release of the December quarter figures based on their read of the clause.

The second matter to which this decision relates is an application by the Company to vary the Agreement under s.217 of the FW Act to remove ambiguity or uncertainty. The company contends that the use of the phrase “December CPI” creates ambiguity or uncertainty and that the Commission should vary the clause by inserting the word quarterly in the clause next to December CPI. Which reflects the intention properly of the Company to apply the most recent data on wage movement to the following annual increase.

In the recent submission the Union have accepted that there is ambiguity or uncertainty, and the resolution should be for the Commission to find that the word annual be inserted in clause 2.6 next to December CPI.

The Respondent sought to be represented at the Hearing by Mr Matthew Follett of Counsel, briefed by Mills Oakley. I am required to consider whether permission ought to be granted under s.596 of the Act. Given the nuanced arguments in an agreement interpretation matter and the effects of a variation if granted, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Applicant – to have the assistance of the Respondent’s legal representative I was also satisfied that the presence of the Respondent’s Representative would also enable the matter to be dealt with more efficiently.

The AWU, being…

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.

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Details

Case: [2022] FWCA 3355
Decision Date: 28 SEPTEMBER 2022

CaseChat Overview and Summary

The case involves Contract Resources Pty Ltd, trading as Contract Resources, and the Australian Council of Trade Unions. The matter was brought before the Fair Work Commission, which was asked to deal with a dispute under an enterprise agreement. Specifically, the dispute centred on the interpretation of Clause 2.6, which pertains to annual wage increases. The company sought to have the clause clarified or removed due to perceived ambiguity, arguing that it created uncertainty and potential for industrial disputes.

The legal issues before the Commission included whether Clause 2.6 was ambiguous or uncertain and, if so, whether the Commission had the power under section 217 of the Fair Work Act to vary the enterprise agreement to remove that ambiguity. The interpretation of the clause was pivotal, as it directly impacted the terms of employment and wage progression for the employees covered by the agreement. The Commission needed to determine whether the proposed variation was necessary to ensure the agreement operated fairly and effectively.

The Fair Work Commission found that Clause 2.6 was indeed ambiguous, leading to potential disputes and uncertainty among the employees. In exercising its discretion under section 217 of the Fair Work Act, the Commission varied the agreement to remove the ambiguity. The decision was made in the interest of maintaining fairness and avoiding industrial disputes. The Commission concluded that the variation was necessary to provide clarity and certainty in the agreement, thereby promoting harmonious workplace relations.

The final orders included the amendment of Clause 2.6 to eliminate the identified ambiguity, ensuring that the enterprise agreement provided clear and certain terms for annual wage increases. This decision aimed to prevent future disputes and maintain a stable industrial environment.

Orders