DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Core Toughened Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(AG2015/4181)

COMMISSIONER RYAN

MELBOURNE, 19 OCTOBER 2015

Application for variation of the Core Toughened Pty Ltd and CFMEU (FFTS Branch) Enterprise Agreement 2012-2015 to remove ambiguity or uncertainty – no ambiguity – application dismissed.

[1] Core Toughened P/L (the Applicant) filed an application to vary the Core Toughened Pty Ltd and CFMEU (FFTS Branch) Enterprise Agreement 2012-2015 (the Agreement). The application sought the following variation:

“1. Vary the Core Toughened Pty Ltd and CFMEU FFTS Branch) Enterprise Agreement 2012-2015 (Enterprise Agreement) so as to amend clause 9.4 of the Enterprise Agreement by deleting the existing words, which read:

‘An employee is entitled to a paid meal break of 30 minutes after five (5) hours of work which is to be taken at a time convenient to the business. No meal break shall be taken in the first hour or the last hour of the shift.
Employees shall receive a paid rest period of 15 minutes duration to be taken at a time convenient to the business and employees after the completion of a minimum of two (2) hours work taken from the commencement of the shift.'

and substituting the following:

‘An employee is entitled to two (2) paid rest periods of 15 minutes duration to be taken at a time convenient to the business and employees after the completion of two (2) hours work taken from the commencement of the shift.’

2. Order that the variation operates from the date the Enterprise Agreement came into operation (27 September 2012).”

Background to the Application

[2] The Construction, Forestry, Mining and Energy Union (the Union) filed an application for the Fair Work Commission to deal with a dispute arising under the terms of the Agreement – C2015/3406. The dispute concerned the provision of meal and rest breaks to employees. The Union contended that the employer was not complying with clause 9.4 of the Agreement and hadn’t been complying with clause 9.4 at any time since the Agreement was made. At the time that the dispute notification was filed with the Commission the parties had been bargaining for some time over a new enterprise agreement.

[3] This dispute was the subject of a conciliation conference before the Commission as currently constituted but remains unresolved.

[4] The Applicant filed the current application before the dispute matter had proceeded any further.

The evidence

[5] The evidence before the Commission from both the Applicant and the Union makes it clear that the Union, as the default bargaining representative for its members, never sought to have both a 30 minute paid meal break and a 15 minute paid rest break provided for in the Agreement.

[6] The evidence before the Commission from the Applicant makes it very clear that the Applicant sought to have the Agreement reflect the current practice in relation to meals breaks, namely either one 30 minute paid…

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

AGLC: Core Toughened Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FWC 7131
Case: [2015] FWC 7131
Decision Date: 19 OCTOBER 2015

CaseChat Overview and Summary

Core Toughened Pty Ltd applied to the Fair Work Commission for a variation of its enterprise agreement with the Construction, Forestry, Mining and Energy Union (FFTS Branch). The company sought to clarify an ambiguous term in the agreement. The Fair Work Commission was the court in this instance.

The legal issue before the Fair Work Commission was whether there was sufficient ambiguity or uncertainty in the agreement to warrant a variation. The company argued that a term in the agreement was unclear and needed to be defined more precisely. The union contended that there was no ambiguity in the term and that the application should be dismissed.

The Fair Work Commission found that there was no ambiguity in the term in question and that the term was clear and unambiguous. The Commission held that the application for variation should be dismissed as there was no basis to alter the agreement due to the lack of ambiguity. The Commission's reasoning was that the term, when considered in its entirety and in context, was clear and did not require further clarification.

No further orders were made by the Commission beyond dismissing the application. The decision confirmed that the enterprise agreement remained in its original form without any variations.

Orders