Raytheon Company T/A Raytheon Australian Operations

[2018] FWCA 1984

[2018] FWCA 1984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Raytheon Company T/A Raytheon Australian Operations
(AG2018/956)

RAYTHEON AUSTRALIAN OPERATIONS AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 6 APRIL 2018

Application for variation of the Raytheon Australian Operations Agreement 2016

[1] This matter concerns an application made by Raytheon Company T/A Raytheon Australian Operations (Raytheon) under s.217 of the Fair Work Act 2009 (“the Act”). The application seeks for the Fair Work Commission to remove an ambiguity or uncertainty in the Raytheon Australian Operations Agreement 2016 (“the Agreement”).

[2] The Agreement was approved by Commissioner Gregory on 6 January 2016 and was stated to operate from 13 January 2016, with a nominal expiry date of 6 January 2019.

[3] Raytheon have applied for certain amendments to be made to the Agreement pursuant to s.217 of the Act. It is said these changes are needed to correct uncertainty in interpretation of the Agreement.

[4] The application identified two respondents, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Ms Deborah Mitchell, an employee of Raytheon.

Legislation

[5] Section 217 of the Act reads 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.”

Background

[6] Raytheon is a US company with employees who work at the Joint Defence Facility Pine Gap (JDFPG) in Alice Springs, Northern Territory. At the JDFPG there are Australian employees, being Australian citizens who are based in Australia. There are also US employees who agree to work at the JDFPG on international assignments.

[7] Raytheon has an enterprise agreement (the Agreement) which applies at the JDFPG. Pursuant to clause 4.1.2 of the Agreement, the Agreement currently covers "Australian employees of Raytheon working at the Joint Defence Facility Pine Gap (JDFPG), ("the Employees").

[8] Raytheon submitted that as presently drafted, clause 4 of the Agreement is capable of more than one meaning. It submitted clause 4 could be said to capture employees who are Australian citizens only. In contrast, it could be said to cover any employee of Raytheon at the JDFPG who is an Australian citizen, including US employees of the Applicant on international assignments who become Australian citizens. That is, dual US-Australia citizens.

[9] Raytheon submitted this amounts to an ambiguity or uncertainty for the purposes of section 217 of the Act which should be rectified.

[10] Raytheon submitted the intention is for the Agreement to apply only to employees of the Applicant at the JDFPG who are Australian citizens and not to US employees on international assignments. Raytheon submitted the terms and conditions of international assignments are governed by separate agreements. Employees on international assignments have the benefit of entitlements replicated in the Agreement.

[11] Raytheon submitted employees who are dual citizens are entitled to the benefit of both the Agreement and the international assignment conditions they will in effect double-dip. Therefore, Raytheon sought for the Commission to insert a new clause 4.1.5 into the Agreement in the following terms:

“For the avoidance of doubt, employees of Raytheon working at the JDFPG who are citizens of the United States of America and who have been employed by Raytheon pursuant to an international assignment or other similar arrangement are not "Employees" for the purposes of this Agreement, whether or not those employees are also citizens of Australia.”

[12] Raytheon submitted the new clause 4.1.5 will make clear that the Agreement does not cover US employees of the JDFPG, and will therefore remove the ambiguity and uncertainty in the coverage clause in the Agreement.

[13] Both of the Respondents to the application, the AMWU and Ms Mitchell, consented to the application. By way of explanation, Ms Mitchell was named as a respondent to this application on the basis that she has separately brought application C2017/6073 on the basis that she had been adversely affected by the ambiguity or uncertainty concerning clause 4.1.2.

Consideration

[14] The presence of an ambiguity or uncertainty is a jurisdictional prerequisite for exercising the power to vary an agreement. 1 I accept Raytheon’s submission that as presently drafted, clause 4.1.2 is capable of more than one meaning. On that basis the jurisdictional prerequisite is satisfied. I am satisfied that the proposed amendment of the Agreement by inserting a new clause 4.1.5 will remove the ambiguity or uncertainty. Accordingly I will exercise my discretion to vary the Agreement as requested by Raytheon.

[15] I have also decided to make the variation with retrospective effect back to the commencement of the Agreement, being 13 January 2016.

COMMISSIONER

 1   Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 (unreported, AIRC (FB), PR917548, 9 May 2000) at [26]-[36] and [49]).

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