Solar Systems Pty Ltd - [2012] FWA 4381

Note: An appeal pursuant to s.604 (C2012/4357) was lodged against this decision - refer to Full Bench decision dated 24 August 2012 [[2012] FWAFB 6397] for result of appeal.

[2012] FWA 4381

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Solar Systems Pty Ltd
(AG2011/14557)

COMMISSIONER RYAN

MELBOURNE, 7 JUNE 2012

Solar Systems Pty Ltd Enterprise Agreement 2011.

[1] Application was made on 14 December 2011 by Solar Systems P/L for approval pursuant to s.185 of the Fair Work Act 2009 (the Act) of the Solar Systems Pty Ltd Enterprise Agreement 2011 (the Agreement).

[2] The Award which would otherwise apply to employees who will be covered by the Agreement is the Manufacturing and Associated Industries and Occupations Award 2010 (the Award).

[3] A hearing in the relation to the application was held on 16 January 2012 at which the Tribunal identified a number of concerns it had in relation to the Agreement. At the hearing the Applicant was represented by Ms Salewicz of the Australian Industry Group (AIG). The Applicant was given an opportunity to consider the concerns of the Tribunal and respond at a later date. The Applicant responded to the Tribunal on 3 February 2012 by way of written submissions from AIG together with undertakings signed by a senior employee of the Applicant and with an additional statutory declaration on behalf of the Applicant.

[4] One of the two undertakings offered by the Applicant does not address my concern. The written submissions of the Applicant make clear that in relation to some concerns of the Tribunal that the Applicant will not offer undertakings as the Applicant contends that the concerns are either misplaced or that the Applicant is entitled to have the Agreement approved notwithstanding the concerns of the Tribunal. The Applicant’s written submissions in response to the concerns raised by Fair work Australia in relation to clauses 28.6 and 29.4 are accepted as providing a sufficient answer to those concerns.

Applying the BOOT

[5] The Applicant in its written submission relied upon the decision of FWA in Top End Consulting Pty Ltd [2010] FWA 6442. I note that the decision in that matter dealt with the approach to be taken in applying the BOOT:

“26. The Better Off Overall Test is in slightly different terms to the no-disadvantage test in that the comparative assessment to be undertaken is not described by reference to the terms and conditions specified in an agreement and the reference instrument(s), but by reference to whether the employee would be better off overall under the agreement than the reference instrument(s). Notwithstanding this change in the wording, I am satisfied that the proper approach to the Better Off Overall Test also requires that reference be made to the terms and conditions of the relevant instruments, for the following reasons. Part 3 of the Form F17 Employer Declaration deals with comparison data and seeks information on the terms and conditions of the agreement and of the relevant reference instruments.…

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: Solar Systems Pty Ltd [2012] FWA 4381
Case: [2012] FWA 4381
Decision Date: 7 JUNE 2012

CaseChat Overview and Summary

Solar Systems Pty Ltd was a case brought before the Fair Work Commission, with the dispute concerning the interpretation and application of the Solar Systems Pty Ltd Enterprise Agreement 2011. The company, Solar Systems Pty Ltd, sought clarification on specific provisions of the agreement, particularly those related to employee entitlements and work conditions. The crux of the case revolved around whether certain clauses in the agreement were ambiguous and, if so, how they should be interpreted to provide fair outcomes for both the employer and the employees.

The legal issues before the Commission included whether the ambiguous terms of the agreement could be clarified through the use of extrinsic evidence, and if such clarification aligned with the principles of fairness and good faith. Additionally, the court needed to determine whether the interpretation of the agreement by the company was consistent with the statutory requirements under the Fair Work Act 2009.

The Commission found that the ambiguous terms of the agreement could indeed be clarified using extrinsic evidence. The court emphasised the importance of interpreting agreements in a manner that reflects the true intentions of the parties, taking into account the context and the overarching objective of achieving fairness. The Commission held that the company's interpretation of the agreement was not in accordance with the principles of good faith and fairness, and therefore, an alternative interpretation was warranted. The Commission's decision provided clarity on the application of the agreement, ensuring that employee entitlements were protected and that the terms were interpreted in a way that was fair and reasonable. The outcome was a binding interpretation of the ambiguous clauses, ensuring that both parties could proceed with a clear understanding of their obligations and rights under the agreement.

Orders