Refresco Australia Pty Ltd

[2023] FWCA 1552

[2023] FWCA 1552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Refresco Australia Pty Ltd

(AG2023/1606)

TRU BLU BEVERAGES PTY LIMITED ENTERPRISE BARGAINING AGREEMENT 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT EASTON	SYDNEY, 30 MAY 2023

Application for variation of the Tru Blu Beverages Pty Limited Enterprise Bargaining Agreement 2022.

1. Refresco Australia Pty Ltd (Refresco) has applied to vary the Tru Blu Beverages Pty Limited Enterprise Bargaining Agreement 2022[1] under s.217 of the Fair Work Act 2009 (Cth) (the Act). Refresco claims there is an ambiguity or uncertainty in the Agreement in the following clauses:

   • Clause 1 – Title
   • Clause 4 – Parties Bound
   • Clause 5 – Definitions
   • Clause 7 – Probationary Period

1. Refresco submits that an ambiguity or uncertainty has arisen in relation to the Agreement following a transfer of business which occurred on 1 December 2022 when all employees of Tru Blu Beverages Pty Limited (Transferring Employees) were transferred to Refresco.

1. Refresco submits that its customers and the Transferring Employees may be confused about the Agreement’s application given that it refers to Tru Blue Beverages Pty Limited and not Refresco.

1. The application was accompanied by a statement from Mr Fady Younes (National HR and WHS Manager for Refresco). Mr Younes explains that Refresco is part of the Refresco Group which expanded into Australia in December 2022 when it acquired Tru Blu Beverages Pty Limited (Tru Blu Beverages) which was a privately owned beverage manufacturer focused on providing non-alcoholic beverages to Australia’s largest retailers and brand owners.

1. Mr Younes submits that during toolbox meetings in December 2022 and January 2023 and during training sessions, that varying the name of the Agreement would add clarity and certainty to the coverage and application of the Agreement.

1. Section 217 is 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.”

1. The principles that are to be applied in considering an application under s.217 was summarised by DP Gostencnik in Forgacs Engineering Pty Limited[2]:

·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;

·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;

·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;

·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;

·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;

·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.

(footnotes omitted)

1. On the basis of the material before me, I am satisfied that there is an ambiguity regarding the name of the employer and that the application has been made in accordance with s.217 of the Act.

1. In the circumstances I am satisfied that the Agreement should be varied as sought and I will make an Order to that effect (PR762645). The variation will operate from 30 May 2023 (per s.217(2)).

DEPUTY PRESIDENT

[1] AE516945.

[2] [2015] FWC 689 at [7].

Printed by authority of the Commonwealth Government Printer

<AE516945 PR762644>