Goldwind Australia Pty Ltd

[2021] FWCA 6431

[2021] FWCA 6431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Goldwind Australia Pty Ltd
(AG2021/8030)

GOLDWIND AUSTRALIA PTY LTD AUSTRALIA SERVICE AND MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2021

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 26 OCTOBER 2021

Application for variation of the Goldwind Australia Pty Ltd Australia Service and Maintenance Employees Enterprise Agreement 2021

[1] Goldwind Australia Pty Ltd has made an application under s.217(1) of the Fair Work Act 2009 (the Act) to vary the Goldwind Australia Pty Ltd Australia Service and Maintenance Employees Enterprise Agreement 2021 (the Agreement) to remove an ambiguity or uncertainty in clause 24.28 of the Agreement. The Agreement was approved by the Commission in a Decision 1 issued on 26 October 2021.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a bargaining representative for the Agreement and is covered by the Agreement.

[3] During the course of seeking approval of the Agreement, a typographical error was identified in clause 24.28. The Applicant contends that this typographical error creates ambiguity or uncertainty which the application seeks to remove.

[4] The ambiguity or uncertainty is said to be found in Clause 24.28 of the Agreement which relates to Pathway Competencies. The intended purpose of clause 24.28 was to make clear the effect of clause 24.27(b) which is to disentitle an employee from back-payment under clause 24.27 if they have not complied with clause 24.26.

[5] Due to a typographical error, clause 24.28 currently reads:

For the avoidance of doubt, an employee will not be entitled to backpay in accordance with clause 24.7 if the employee has not made themselves available for Pathways assessment in accordance with clause 24.26.

[6] The reference to clause 24.7 should read clause 24.27, as clause 24.7 of the Agreement relates to a First Aid Allowance in respect of which no back-pay entitlement arises under the Agreement.

Relevant Legislation

[7] The application has been made under s.217 of the Act, which provides as follows:

“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.”

Consideration

[8] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement is enlivened under s.217 of the Act. 2 There is no clear test for determining when an ambiguity exists3 and the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning.4 Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will approve a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.5

[9] On the basis of the material before me I am satisfied that there is an ambiguity or uncertainty on the basis that clause 24.28 as currently worded creates ambiguity by referring to an incorrect clause that does not entitle any employee to backpay of an allowance. Further, ambiguity arises where the clause does not make clear the circumstances where an employee is not entitled to backpay of the relevant allowance.

[10] I am satisfied that the variation sought reflects the proper construction of the Agreement. The views of the employee bargaining representatives and the CEPU were sought in relation to this application, and no objections were received.

Conclusion

[11] I am satisfied that it is appropriate to vary the Agreement to resolve an ambiguity or uncertainty. I am also satisfied that the variation proposed is appropriate, will not involve rewriting the Agreement, and reflects the proper construction of the Agreement. It is appropriate that the discretion to vary the Agreement to resolve the ambiguity or uncertainty is exercised.

[12] I Order that the Agreement be varied as follows:

(i) By deleting the existing clause 24.28; and

(ii) By inserting the amended clause 24.28 as follows:

For the avoidance of doubt, an employee will not be entitled to backpay in accordance

with clause 24.27 if the employee has not made themselves available for Pathways

assessment in accordance with clause 24.26.

[13] The variation will operate from 26 October 2021, immediately upon the approval of the Agreement on that date. An Order 6 giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513642  PR735241>

 1   [2021] FWCA 6414.

 2   Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].

 3   Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.

 4   Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per Ross VP, O’Callaghan SDP and Foggo C.

 5 Ibid at [32].

 6   PR735247.