Lendlease Engineering Pty Limited

[2019] FWC 7978

[2019] FWC 7978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Lendlease Engineering Pty Limited
(AG2019/3949)

COMMISSIONER MCKINNON MELBOURNE, 22 NOVEMBER 2019

Whether enterprise agreement coverage term ambiguous or uncertain – no ambiguity or uncertainty – application dismissed.

[1] The Lendlease Engineering Pty Limited KSD & M1/M3 Projects Enterprise Agreement 2019 was approved by the Commission on 20 September 2019. 1

[2] Lendlease Engineering Pty Limited now seeks to vary the coverage term and signatories clause of the Agreement to remove references to the Construction, Forestry, Maritime, Mining and Energy Union. It says clauses 1.2 and 10 of the Agreement are ambiguous or uncertain because they refer to and suggest that the Union is covered by the Agreement when it is not. Lendlease asks that the variation apply from the date the Agreement commenced operation (27 September 2019). The Union supports the application because it says the Agreement wrongly suggests at least its tacit support for the Agreement.

[3] The question is whether there is a relevant ambiguity or uncertainty in the Agreement and if so, whether it should be cured by variation. The relevant principles are concisely set out in Bradnam’s Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers’ Union Enterprise Agreement 2018 2 and I do not repeat them.

[4] In deciding to approve the Agreement, I dealt with substantially the same question. I found that there was no relevant ambiguity or uncertainty in the coverage clause of the Agreement. It reflects the legal position that for union bargaining representatives to become covered by an enterprise agreement, the agreement approval decision must include a note to that effect. 3

[5] I remain of the view that there is no ambiguity in clause 1.2 of the Agreement. Clause 1.2 expressly states that the Union will be covered by the Agreement “provided that” the fact of its coverage is noted by the Commission at the time the Agreement is approved. The words of clause 1.2 only have one meaning – that is, the Union will be covered by the Agreement if (and only if) that fact is noted in the approval decision.

[6] The approval decision does not note that the Union is covered. It could not have done so, because the Union did not give the Commission a written notice stating that it wanted to be covered by the Agreement before the Agreement was approved. The result is that the Agreement does not cover the Union – a matter that is clear on the face of the record. This is not a case where there are any rival contentions advanced about the meaning of the clause.

[7] A similar application was granted in Lend Lease Engineering Pty Ltd Queensland and Northern Territory Enterprise Agreement 2015 4. The Union concedes that there were differences between the coverage terms in that case and this one, although submits that the differences are of no moment. I do not agree. By the use of the word “being”, the term under consideration in the earlier case wrongly suggested that the Union had both signed the Agreement and had been noted as covered by its terms. There is no equivalent inference to be drawn from the words of clause 1.2 of the Agreement. As is often said, each case turns on its own facts and must be considered on its merits.

[8] There is also no ambiguity in the signature pages found at clause 10 of the Agreement. The Agreement contains signature blocks for Lendlease, its employees, the Australian Workers’ Union and the Union. The purpose of clause 10 is to demonstrate compliance with the signature requirements for approval of enterprise agreements under the Fair Work Act 2009. To that end, it contains signatures on behalf of Lendlease and two employee representatives. There are no union signatures, just empty signature blocks. Rather than reinforcing tacit support for the Agreement, this absence of signatures suggests the contrary position. Clause 10 does not give rise to any ambiguity or uncertainty, either on its own or in the context of the Agreement as a whole. Other than in clauses 1.2 and 10, there is no reference to the Union in the text of the Agreement.

[9] There is no contextual basis for finding a relevant ambiguity or uncertainty in the Agreement in relation to whether the Union supports the Agreement or is covered by its terms. The Agreement is clear in its terms. As there is no ambiguity or uncertainty in the Agreement, it is not necessary to consider whether I should exercise my discretion to resolve the concern.

[10] The application is dismissed.

COMMISSIONER

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 1   [2019] FWCA 6491; AE505350.

 2   [2019] FWCA 979.

 3   [2019] FWCA 6491 at [13].

 4   [2016] FWCA 3463.