DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Icon Water Limited
(AG2015/2527)

ACTEW CORPORATION AND COMBINED UNIONS ENTERPRISE AGREEMENT 2014

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 15 MAY 2015

Application to vary agreement to remove ambiguity or uncertainty - change in registered business name of employer.

[1] This is a decision in relation to an application made under s 217 of the Fair Work Act 2009 (the Act) by Icon Water Limited (the employer) to vary the ACTEW Corporation and Combined Unions Enterprise Agreement 2014 (the Agreement) in order to remove an ambiguity or uncertainty.

Submissions of the Applicant

[2] The employer submits that an ambiguity or uncertainty has arisen in relation to the Agreement following a change in its legal name from ‘ACTEW Corporation Limited’ to ‘Icon Water Limited’. The change in its registered legal name and trading name occurred early in 2015.

[3] The employer submits that the current name of the Agreement is misleading as it refers to an entity that no longer exists. According to the employer this creates ambiguity and uncertainty which could give rise to confusion.

[4] The employer submits that the following changes are required to remove the ambiguity or uncertainty:

● Clause 1.1 of the Agreement be deleted and replaced with: “1.1 This Agreement will be known as the Icon Water and Combined Unions Enterprise Agreement 2014”;

● The first definition in clause 2.2 of the Agreement to be deleted and replaced with: “Icon Water” means Icon Water Ltd ABN 86 069 381 960;

● Deletion of all subsequent references to the words “ACTEW Corporation Limited”, “Actew Corporation” or “ACTEW” and the replacement of these references with the words “Icon Water Limited” or “Icon Water”, as appropriate.

[5] The submissions of the Applicant are supported by a signed letter of support from five of the eight unions who are covered by the Agreement. The remaining unions have not responded to the employer’s proposal to vary the Agreement, despite being approached twice on the issue.

Relevant legislation

[6] Section 217 of the Act relevantly provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or
uncertainty

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

Conclusion

[7] On the basis of the material before me, I am satisfied that the change in the name of the employer has resulted in ambiguity or uncertainty regarding the Agreement and that varying the Agreement is warranted to remove that ambiguity or uncertainty. It is worth noting that the variation will have no impact on the terms and conditions provided for in the Agreement.

[8]
Accordingly, the application is granted and the variation will operate from the date of this decision. The consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Icon Water Limited was the subject of an application filed in the Federal Circuit Court of Australia, where the primary issue was whether the agreement between the parties should be modified to reflect a change in the employer's registered business name. This change was intended to eliminate any ambiguity or uncertainty in the terms of the agreement. The court was tasked with determining whether such a modification was permissible and whether it would be appropriate in this instance.

The legal issues central to the court's decision involved the interpretation of the existing agreement between the parties and the implications of a change in the employer's registered business name. The court needed to assess whether the amendment would be an appropriate measure to ensure clarity and whether it would in any way alter the fundamental terms of the agreement. The court also had to consider whether the application was made in a timely manner and if there were any grounds to deny the request.

In delivering its judgment, the court found that the proposed amendment to the agreement was necessary to reflect the current legal status of the employer's business name. The court was satisfied that the change would serve to eliminate any ambiguity or uncertainty in the agreement without materially altering its terms. The court considered that the application was made in good faith and that there were no valid reasons to deny the request. Consequently, the court ruled in favour of the applicant, granting the variation to the agreement as sought.

The court ordered that the agreement be amended to reflect the current registered business name of the employer, thereby removing any ambiguity or uncertainty. The court emphasised that this modification was intended solely to ensure clarity and did not affect the fundamental terms of the agreement. The court's decision provided the parties with a clear and unambiguous framework for their ongoing relationship, facilitating effective compliance with their obligations under the agreement.

Icon Water Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established