Ngarda Civil and Mining Pty Ltd

[2012] FWA 7500

[2012] FWA 7500

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 10 Sch. 3—Variation of transitional instrument - agreement

Ngarda Civil and Mining Pty Ltd
(AG2012/9859)

Ngarda Civil and Mining Pty Ltd
(AG2012/9860)

COMMISSIONER WILLIAMS PERTH, 31 AUGUST 2012

Application to vary transitional instrument to remove ambiguity - agreement.

[1] This decision deals with two applications made Mr Burton, the Chief Operating Officer of Ngarda Civil and Mining Pty Ltd to vary the Western Australia and Northern Territory Mining Employee Collective Agreement 2009 [AC325063] (AG2012/9859) and the Western Australia and Northern Territory Construction Employee Collective Agreement 2009 [AC325052] (AG2012/9860) (collectively, the Agreements).

[2] Both applications seek to vary the agreement to remove an ambiguity under item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

Background

[3] Both Agreements contain Clause 3.0 (b) Application of Agreement as follows:

“b) This Agreement provides the minimum terms and conditions applicable to all employees of Ngarda Civil & Mining Pty Limited (“the Company”) within the classifications covered in this Agreement who are employed to undertake work that originates from and / or is managed by the Western Regional Office of the Company of 185 Great Eastern Highway, Belmont, Western Australia.”

[4] Further both the Agreements include Clause 3.1 Parties Bound as follows:

“3.1 This Agreement is binding upon the Company and its employees employed in Western Australia and the Northern Territory within the classifications set out in this Agreement (“the employees”) (together “the parties”).”

[5] At the hearing of these applications the applicant’s representatives explained that the intention of making these applications was to vary the Agreements so that employees of another entity known as Ngarda People Pty Ltd, which is an associated entity of Ngarda Civil and Mining Pty Ltd, would also be covered by these Agreements.

Consideration

[6] Both of these Agreements were made under the previous Workplace Relations Act 1996 (the WR Act).

[7] From 1 July 2009, despite the repeal of the WR Act, the Agreements each continued in existence as a “transitional instrument” within the meaning of sub-items 2(2) and 2(3)(a) of Part 2 of Schedule 3 to the Transitional Act.

[8] Sub-item 9(1) of Part 3 of Schedule 3 to the Transitional Act provides that a transitional instrument cannot be varied except under circumstances referred to in that sub-item. In particular, sub-item 9(1)(a) provides that a transitional instrument cannot be varied except under “a provision of this Part or the regulations”.

[9] Item 10 of Part 3 of Schedule 3 to the Transitional Act relevantly provides:

“10 All kinds of transitional instrument: variation to remove ambiguities etc.

(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; ...”

[10] The question for determination here is whether there is an “ambiguity or uncertainty” in the Agreements such as to provide a basis for their variation pursuant to item 10 of Part 3 of Schedule 3 to the Transitional Act as is sought by the applicant.

[11] The principles governing the construction of contracts have been applied to the construction of industrial instruments. 1 In Codelfa Construction Pty Ltd v State Rail Authority of N.S.W 2 the High Court considered the widely accepted principles for resolving ambiguity in contracts. In that case Mason J (with whom Stephen and Wilson JJ agreed) stated at paragraph 352 the rule as follows:

“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.”

[12] In the present case, the starting point is essentially a question of construction. My first responsibility is to determine whether the clause has a plain meaning or contains an ambiguity. Only if there is an ambiguity or uncertainty identified can there potentially be any variation under these provisions of the legislation.

[13] Considering then the terms of both Clause 3.0 and 3.1 in my view, the words and intent of the Agreements are clear. The Agreements only provide terms and conditions for employees of Ngarda Civil and Mining Pty Ltd, there is no suggestion that this should extend to employees of other associated entities such as Ngarda People Pty Ltd.

[14] For these reasons, there is no ambiguity or uncertainty in Clause 3.0 and 3.1 of the Agreements and therefore the requirements of item 10 of Part 3 of Schedule 3 to the Transitional Act are not met in relation to the applications. Accordingly there is no basis on which to vary Clause 3.0 of the Agreements pursuant to item 10 as the applicant seeks.

[15] Consequently I will dismiss both of these applications and an order to that effect will be issued in conjunction with this decision.

[16] Whilst it is not the Tribunal’s role to provide advice to parties I note the aim of having the same agreement covering the employment of employees of two employers could be achieved, if the applicant wishes, by making a new agreement either as single interest employers (see s.172(2) of the Fair Work Act 2009) or as a multi−enterprise agreement (see s.172(3) of the Fair Work Act 2009). These options, their implications and the processes involved are matters the applicant may wish to seek independent professional advice on.

COMMISSIONER

Appearances:

V Moriarty and C Ross-Croft for Ngarda Civil and Mining Pty Ltd

Hearing details:

2012.
Perth:
August 24.

 1   See generally Short v FW Hercus Pty Ltd (1993) 40 FCR 511.

 2 (1981-1982) 149 CLR 337.

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