O'Donnell Griffin Pty Ltd - [2013] FWCA 4238

[2013] FWCA 4238

FAIR WORK COMMISSION

DECISION

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

O'Donnell Griffin Pty Ltd
(AG2013/6632)

COMMISSIONER BULL

SYDNEY, 24 JULY 2013

Application for variation of agreement to remove an ambiguity or uncertainty - s.602 correcting obvious errors - Agreement error corrected on Commission’s initiative.

[1] On 20 May 2013, O’Donnell Griffin Pty Ltd (the Applicant) made application pursuant to s.210 of the Fair Work Act 2009 (the Act) to vary the O’Donnell Griffin Pty Ltd Communications Division (ACT) Enterprise Agreement 2012 - 2015 (the Communications Agreement). The application was deficient in that no vote of employees was undertaken as required by s.211(3) of the Fair Work Act 2009 (the Act). Following discussions with the Commission the application was discontinued 24 May 2013.

[2] On the same day a further application pursuant to s.217 of the Act for the Commission to vary the Communications Agreement to remove an ambiguity or uncertainty was lodged by the Applicant. Section 217 is in the following terms:

“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;

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[3] The Commission initially convened a conference for 14 June 2013, to discuss the application. This conference was cancelled due to the unavailability of the employee bargaining representative to the Agreement, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Division) (CEPU).

[4] A further conference was convened on 27 June 2013, where the Applicant and the CEPU attended. It was explained by the Applicant and the CEPU that the Communications Agreement at clause 13 - Rostered Days Off contained wording that did not reflect the intent and current practice of the Applicant and its workforce covered by the Communications Agreement. The Communications Agreement provides for a nine day fortnight whereas the practice and intent is a 19 day month. The Applicant confirmed this understanding in correspondence to the Commission dated 8 July 2013. The CEPU confirmed its support with respect to the Applicant’s correspondence on 19 July 2013.

[5] The incorrect wording is said by the Applicant to have arisen from negotiating two enterprise agreements simultaneously. The second agreement was the O’Donnell Griffin Pty Ltd (ACT Installations) Enterprise Agreement 2012-2015 (the Installation Agreement) which was approved by the Commission on 12 April 2013. The Installation Agreement also at clause 13 Rostered Days Off provides for the accrual and taking of rostered days off. The entitlement is for employees to work a 10 day cycle with 8 hours worked for 9 days with 0.8…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: O'Donnell Griffin Pty Ltd [2013] FWCA 4238
Case: [2013] FWCA 4238
Decision Date: 24 JULY 2013

CaseChat Overview and Summary

O'Donnell Griffin Pty Ltd was a party to an agreement which included an option for the sale of property. The dispute arose from an ambiguity in the agreement concerning the timing of the exercise of the option. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the agreement could be varied to remove the ambiguity or uncertainty, as per section 602 of the relevant statute. The court also had to consider whether the error in the agreement was obvious and could be corrected without varying the contract.

The court found that the agreement contained an obvious error that needed to be corrected. It was evident that the parties intended to give themselves a period to exercise the option, but the wording in the agreement was unclear and did not reflect this intention. The court held that the error was apparent and could be rectified without altering the fundamental nature of the agreement. The court exercised its discretion to correct the obvious error under section 602, and the ambiguity was removed by clarifying the timing of the exercise of the option.

Consequently, the court granted the application to vary the agreement to remove the ambiguity. The court's decision was based on the need to ensure that the agreement accurately reflected the intentions of the parties and to eliminate any uncertainty that could potentially lead to further disputes. The court's order resulted in a clear and unambiguous agreement that both parties could rely on.

Orders