Opal Packaging Australia Pty Ltd T/A Opal Bag Solutions

[2021] FWCA 1797

[2021] FWCA 1797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Opal Packaging Australia Pty Ltd T/A Opal Bag Solutions
(AG2021/3916)

OPAL BAG SOLUTIONS THOMASTOWN ENTERPRISE AGREEMENT 2020

Graphic Arts
COMMISSIONER YILMAZ	MELBOURNE, 12 APRIL 2021

Application for variation of the Opal Bag Solutions Thomastown Enterprise Agreement 2020.

[1] On 22 February 2021 Opal Packaging Australia Pty Ltd T/A Opal Bag Solutions (Opal) applied to vary the Opal Bag Solutions Thomastown Enterprise Agreement 2020 (the Agreement) under s.217 of the Fair Work Act 2009 (Cth) (the Act).

[2] Opal seeks to vary appendix 5 of the Agreement, which contains a cross-referencing error as the appendix currently states that ‘any changes will be in accordance with clause 30’. Opal in their form F1 filed with their application, state that the correct clause reference in appendix 5 is clause 29 and therefore appendix 5 of the Agreement should be varied to state that ‘any changes will be in accordance with clause 29’.

[3] In its form F1, Opal has set out the reasons why the incorrect cross-reference creates an ambiguity or uncertainty for the purposes of s.217 of the Act. Paragraphs 7-9 of the form F1 relevantly state as follows:

7. The reference to clause 30 in the Relevant Sentence is an incorrect cross-reference. It is clear from clause 30 that it deals only with a subset of crewing changes driven by specific reasons (continuous improvement of changes in product mix or type).

8. Clause 29 is the general clause dealing with changes for crewing levels and, as noted at paragraph 2 above, sub-clause 29(b) specifically cross references Appendix 5 and provides that the crewing levels set out in Appendix 5 will not be reduced except in accordance with this clause (being clause 29).

9. The Applicant submits that the Relevant Sentence creates an ambiguity or uncertainty as to the correct process to be followed in order to reduce crewing levels, as the Relevant Sentence is not consistent with the provisions of clauses 29 and 30. The Applicant submits that this constitutes an ambiguity or uncertainty for the purposes of section 217 of the FW Act.

[4] Furthermore, Opal submits that a cross-reference in appendix 5 to clause 29 is what was intended by the parties to the Agreement as this is clear from the words of clauses 29 and 30 of the Agreement and from the Form F17 lodged with the Commission for the application for approval of the Agreement in 2020.

[5] Relevantly, Attachment A of the Form F17 contains explanatory materials provided to employees during the access period and page 18 of that document states ‘this Appendix acknowledges crewing is fluid and may be reduced as referenced in Clause 29’.

[6] In addition to the materials filed by Opal, on 25 February 2021 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) notified my chambers that it did not have any concerns with the application made by Opal.

Jurisdiction

[7] Section 217 of the Act provides:

“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

[8] I am satisfied that the application was made by the employer covered by the

Agreement and that it has capacity to make the application.

[9] Decisions of this Commission to vary agreements on the grounds of ambiguity or uncertainty traditionally requires determination whether there is an ambiguity or uncertainty having regard to principles concerning the interpretation of agreements. It is an objective assessment of the words regarding their context.

[10] Opal’s application refers to appendix 5 – Crewing, which contains a table that identifies minimum safe crewing levels per machine per relevant shift. Appendix 5 recognises that crewing levels are dynamic in recognition of the business condition at the time. Opal displays a chart on the notice board with current crewing levels to inform team members. Clause 29, being the correct clause according to Opal and supported by the AMWU, is a generic clause that was intended to cross reference the appendix, reinforcing that crew levels are not static but rather dynamic due to certain conditions that nevertheless require consultation with the JCC. This process allows for a flexible response when business conditions require it. However, clause 30 deals with the reduction of crew levels due to major workplace change conditions, and while consultation with the JCC applies, it is a more detailed and complex process. Clause 30, unlike clause 29, does not provide for responses to dynamic business conditions. In my opinion by referencing the wrong clause creates ambiguity and uncertainty regarding process, and whether the crew levels are in fact dynamic. The language in the appendix consequently creates ambiguity and uncertainty as to how crew levels can be dynamic and under what circumstances.

[11] The Applicant referred to the Decision of DP Gostencnik in Bradnam’s Windows and Doors Pty Ltd (Bradnam’s), 1 which provided a summary of the principles to be applied in consideration an application under s.217. Those principles were set out as follows:

“[11] As seems clear from the text of s.217, the discretion to vary an agreement may

only be exercised if first the Commission is satisfied that there is ambiguity or

uncertainty in the agreement. The principles that are to be applied in considering an

application under s.217 may be shortly stated:

● The Commission should approach an application in two stages. First, as a

jurisdictional pre-requisite, it should identify whether there is an uncertainty or

ambiguity. Secondly, if an ambiguity or uncertainty is identified, it should consider

whether to exercise its discretion to vary the agreement the subject of the

application; 2

● The process of identifying ambiguity or uncertainty involves making an objective

assessment of the words used in the provisions under examination. The words used

are construed having regard to their context; 3

● 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; 4

● However, the Commission must make a positive finding that an agreement the

subject of an application under s.217 is ambiguous or uncertain. Prima

facie satisfaction of ambiguity or uncertainty is not sufficient; 5

● The mere existence of rival contentions as to the proper construction of the terms of

an agreement will also be an insufficient basis to conclude the existence of

ambiguity or uncertainty. Such contentions may be self-serving. The task is to make

an objective judgment as to whether the wording of a provision is susceptible to

more than one meaning; 6 and

● Once an ambiguity or uncertainty has been identified, in exercising the discretion

whether to vary the agreement, the Commission is to have regard to the mutual

intention of the parties at the time the agreement was made. 7”

[12] I am satisfied that the reference to clause 30 instead of clause 29 in appendix 5 creates ambiguity or uncertainty by giving rise to different interpretations. Having considered the materials filed with the application for approval of the Agreement, together with the submissions of the parties in this application I am satisfied that I should use my discretion to remove the ambiguity or uncertainty, by correcting the reference and reflecting the intention of Opal, the AMWU and the employees that voted for the agreement at the time it was made.

[13] I am satisfied that the variation sought removes the ambiguity and uncertainty posedby appendix 5 and reflects the intention of the parties when the Agreement was made.

[14] Accordingly, I will issue an Order varying the Agreement in terms proposed by the Opal which will operate from 20 November 2020.

COMMISSIONER

 1   [2019] FWCA 979.

 2   See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35].

 3 Ibid at [29].

 4 Ibid at [31].

 5   See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57].

 6   See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v

CFMEU (PR903843); Re CFMEU Appeal (Print R2431).

 7   See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32].

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