Lendlease Engineering Pty Ltd

[2016] FWCA 3463

[2016] FWCA 3463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Application to vary an agreement to remove an ambiguity or uncertainty

Lendlease Engineering Pty Ltd
(AG2016/3172)

LEND LEASE ENGINEERING PTY LTD QUEENSLAND AND NORTHERN TERRITORY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 1 JUNE 2016

Application for variation of the Lend Lease Engineering Pty Ltd Queensland and Northern Territory Enterprise Agreement 2015.

[1] An application has been made to vary the Lend Lease Engineering Pty Ltd Queensland and Northern Territory Enterprise Agreement 2015 (the Agreement) by Lendlease Engineering Pty Ltd (Lendlease) to remove an ambiguity or uncertainty. The application was made pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary clause 1.2 to remove the words ‘and/or’ and ‘Construction, Forestry, Mining and Energy Union’. The application further seeks to remove page 20 from the agreement, which is the unsigned signature page of the Construction, Forestry, Mining and Energy Union (CFMEU).

[3] The Agreement covers the Australian Workers’ Union (AWU).

[4] Lendlease submitted that the whilst the CFMEU was involved in the negotiation of the Agreement, it is not a signatory to the Agreement, and it did not seek to be covered by the Agreement pursuant to s.183(1) of the Act.

[5] I sought the views of both the CFMEU and the AWU in correspondence to the parties from my chambers on 20 May 2016.

[6] On 23 May 2016, the CFMEU wrote to my chambers advising, “The CFMEU supports this consent application. The inclusion of the CFMEU as a named party to the Agreement represents an ambiguity or uncertainty, which should be corrected accordingly”.

[7] On 30 May 2016, the AWU wrote to my chambers and submitted that there is no ambiguity or uncertainty contained within the Agreement as the decision to approve the Agreement makes clear that the CFMEU did not make application under s.183 to be covered by the Agreement and the signature page for the CFMEU remains unsigned.

[8] Legislation

[9] 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.”

[10] In Tenix Defence Systems Pty Limited (Tenix) 1 the Full Bench of the Australian Industrial Relations Commission outlined the proper approach to be taken when determining an application pursuant to s.170MD(6) of the Workplace Relations Act 1996, a provision whose terms were similar to s.217 of the 2009 Act. The Full Bench held that:

“Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement. The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997:

"The identification of whether or not a provision in an instrument can be said to contain an `ambiguity' requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the `parent' award with which a complimentary provision is to be read."

We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.

The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.

Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.”

[11] I have had regard to the principles in Tenix and, the views of the AWU and the consent provided by the CFMEU to the application. I am satisfied that there is an ambiguity because the CFMEU is not covered by, nor a signatory to the Agreement.

[12] Consequently the application is granted and the agreement is varied by:

1. Amending clause 1.2 of the Agreement by deleting the words: “and/or” and “Construction, Forestry, Mining and Energy Union”.

2. By deleting the signature page for the CFMEU at page 20.

[13] Lendlease seek for variation to operate retrospectively, from 1 October 2015, being the date the Agreement commenced. Lendlease submitted there is no stipulation that the operative date cannot be retrospective.

[14] I have considered s.217(2) of the Act and I am not satisfied that the variation can be made retrospectively. Accordingly, the variation shall take effect from 1 June 2016. I order accordingly.

COMMISSIONER

 1   Tenix Defence Pty Limited re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 - PR913098 [2002] AIRC 46 (11 January 2002) at paragraph nos. 28-32.

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