James Darbey

[2021] FWCA 5642

[2021] FWCA 5642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

James Darbey
(AG2021/6570)

WIEA 2021

Manufacturing and associated industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 8 SEPTEMBER 2021

Application for variation of the WIEA 2021.

Background

[1] This Decision concerns an application under s.217(1) of the Fair Work Act 2009 (the FW Act) to vary the WIEA 2021 (the Agreement) to remove an ambiguity or uncertainty in clauses 2, 7 and 17 of the Agreement. In a decision issued on 28 July 2021, I approved the Agreement with effect from 28 July 2021. The Application to vary the Agreement is made by Mr James Darbey an employee covered by the Agreement and who signed the Agreement on behalf of employees.

[2] The ambiguity or uncertainty is said by Mr Darbey to arise in clause 2 of the Agreement, which erroneously states that the employing entity covered by the Agreement is White Industries Pty Ltd (ABN 97 009 980 643). Mr Darbey states that the correct entity is White Nominees P/L as Trustee for White Industries Family Trust T/A White Industries (ABN 21 665 826 470).

[3] The incorrect employing entity is also referred to in the Agreement at clause 7, where the Employer is defined as White Industries Pty Ltd and at clause 17, which refers to the incorrect entity as the Employer signatory to the Agreement.

Legislation

[4] The application has been made under s.217 of the FW 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

[5] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an enterprise agreement is enlivened under s.217 of the FW Act. 1 There is no clear test for determining when an ambiguity exists2 and the Commission must make an objective assessment about whether, on the proper construction of the relevant agreement, it is susceptible to more than one meaning.3 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.4

[6] On the basis of the material before me I am satisfied that there is an ambiguity or uncertainty on the basis that the incorrect employing entity has been named in the Agreement. This gives rise to an ambiguity or uncertainty as to the rights and obligations of the employer of the employees covered by the Agreement. In reaching this conclusion, I have had regard to the information provided on the application by Mr Darbey that there is no doubt that White Nominees P/L as Trustee for White Industries Family Trust T/A White Industries is his employer and the employer of other employees covered by the Agreement and on whose behalf he signed it. I have also had regard to a payslip tendered by Mr Darbey which demonstrates that White Nominees P/L as Trustee for White Industries Family Trust T/A White Industries is the entity identified as the employer on Mr Darbey’s payslips.

[7] The application is supported by White Nominees P/L as Trustee for White Industries Family Trust T/A White Industries. I also note that the application could not have been made by the entity named in the Agreement on the basis that it is not an employer covered by the Agreement as required in s. 217(1) of the FW Act.

[8] I am also satisfied that this is an appropriate case for the exercise of discretion to vary the Agreement to remove the ambiguity or uncertainty. In my view it is both necessary and desirable for both the employer and employees covered by an enterprise agreement that the agreement correctly names the employing entity bound by it and obligated to comply with its terms. Further, I am of the view that equity, good conscience and the substantial merits of the case favour varying the Agreement so that it reflects the common intention of White Nominees P/L as Trustee for White Industries Family Trust T/A White Industries and its employees to make the Agreement and its approval pursuant to the FW Act so that it would be binding upon the employer and employees. To give effect to the common intention of the parties, the variation to the Agreement should operate from its approval on 28 July 2021.

Conclusion

[9] For the reasons given, pursuant to s. 217 of the Act, I vary the Agreement as follows:

“1. By deleting the reference to “White Industries Pty Ltd (ABN 97 009 980 643) at clause 2, clause 7 and clause 17 of the WIEA 2021 and inserting in lieu “White Nominees P/L as Trustee for White Industries Family Trust T/A White Industries (ABN 21 665 826 470).”

[10] The variations will operate from 28 July 2021, immediately upon the approval of the Agreement on that date. An Order 5 giving effect to this decision will issue with this Decision.

DEPUTY PRESIDENT

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

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

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

 4 Ibid at [32].

 5   PR733714.

Printed by authority of the Commonwealth Government Printer

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