InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Reinforcing

[2022] FWCA 1119

[2022] FWCA 1119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

InfraBuild Construction Solutions Pty Ltd T/A InfraBuild Reinforcing

(AG2022/911)

InfraBuild Construction Solutions National Enterprise Agreement 2018 - 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT CROSS	SYDNEY, 8 APRIL 2022

Application for variation of the InfraBuild Construction Solutions National Enterprise Agreement 2018-2021

1. An application, pursuant to s.217 of the Fair Work Act 2009 (Cth) (the Act) was filed on 28 March 2022, by InfraBuild Construction Solutions Pty Ltd (the Applicant) to vary clause 1 of the InfraBuild Construction Solutions National Enterprise Agreement 2018 – 2021 (the Agreement). The Australian Workers’ Union is covered by the Agreement, and as identified by the Application, are in support of the variation sought by the Applicant.

1. The application seeks the variation of an ambiguity or uncertainty in respect of the title of the Agreement. The current title of the Agreement is “InfraBuild Construction Solutions National Enterprise Agreement 2018 – 2021” and the proposed amended title is “InfraBuild Construction Solutions National Enterprise Agreement 2021 – 2025”

1. The Applicant, in their Form F1 filed, submits that the uncertainty arises, and could be addressed, as follows:

1. “The dates (2018 – 2021) listed in the title of the Agreement as set out in clause 1 – Title, are incorrect, and inconsistent with the correct dates that are used elsewhere throughout the Agreement.

2. The incorrect dates referred to above were:

1. The result of an inadvertent typographical error during drafting the Agreement;

2. Intended by the parties covered by the Agreement to read as 2021 – 2025, which reflects the current period of operation of the Agreement; and

3. Reflect the period of operation of the predecessor enterprise agreement.

3. The incorrect dates in the Title clause result in an ambiguous and uncertain situation regarding the intended, proper and correct title of the Agreement.

4. The ambiguous and uncertain situation creates confusion for the parties covered by the Agreement in regard to readily referencing and distinguishing between the current and predecessor agreement.

5. Varying the Agreement as proposed:

1. Is an administrative change that removes the ambiguity and uncertainty without affecting any of the substantive terms and conditions of the Agreement; and

2. Is supported by the Australian Workers’ Union who is covered by the Agreement and who was the bargaining representative for employees who the Agreement covers and applies to.

6. Further, varying the Agreement as proposed:

1. Is consistent with section 217 – Variation of an enterprise agreement to remove an ambiguity or uncertainty, of the Fair Work Act 2009; and

2. Is not contrary to the public interest.”

1. On 30 March 2022, I issued correspondence from my Chambers seeking confirmation as to whether either the Applicant or the Australian Workers’ Union wished to make any submissions in respect of the Application.

1. On 30 March 2022, the AWU advised my Chambers that they were in support of the Application, and did not wish to make any further submissions.

1. Section 217 of the Act 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.

1. I am satisfied that I should exercise my discretion to vary the Agreement to remove the ambiguity or uncertainty by consent of the parties.

1. The variation shall take effect on and from 8 April 2022. An Order has contemporaneously been published giving effect to this Decision.

DEPUTY PRESIDENT

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