The Australian Workers’ Union

[2019] FWCA 4371

[2019] FWCA 4371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

The Australian Workers’ Union
(AG2019/2018)

VENTIA BORAL AMEY NSW PTY LTD ENTERPRISE AGREEMENT 2018

Asphalt industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 30 JULY 2019

Application to vary an enterprise agreement to remove ambiguity or uncertainty

[1] The Australian Workers’ Union has made an application under s 217 of the Fair Work Act 2009 (Act) to vary the Ventia Boral Amey NSW Pty Ltd Enterprise Agreement 2018 1 (Agreement) to remove ambiguity or uncertainty. The employer covered by the Agreement, Ventia Boral Amey NSW Pty Ltd, supports the application. The parties filed a joint written submission, and advised that they were content for the Commission to determine the matter on the papers. I consider it appropriate to do so.

[2] The application asks the Fair Work Commission to remove an ambiguity or uncertainty said to be found in clause 24.6 of the Agreement, which forms part of the higher duties provision in the Agreement. The clause presently reads: ‘If the required period of relief in a higher grade position is for six months or more,’. No text follows the comma. The application seeks to have the Commission vary the Agreement to add the following words after the comma: ‘expressions of interest must be sought from the local work area.’ The application also seeks to vary the Agreement to correct the company’s ABN in clause 2.1(a) of the Agreement.

[3] Section 217 of the Act provides that the Commission ‘may vary an enterprise agreement to remove an ambiguity or uncertainty’. It may do so on application by an employer, employee or union covered by the agreement. The principles that apply to the Commission’s consideration of such applications are well-settled. 2 The Commission must first identify whether there is any ambiguity or uncertainty in the agreement. The presence of ambiguity or uncertainty is a jurisdictional pre-requisite to the exercise of the discretion to vary the instrument. The Commission must make a positive finding as to whether the relevant provisions of the agreement are ambiguous or uncertain. The process of considering whether there is ambiguity or uncertainty involves an objective assessment of the words in question, construed in context. The mere existence of rival contentions as to the proper construction of the terms of an agreement is not a sufficient basis to conclude that there is ambiguity or uncertainty.

[4] If ambiguity or uncertainty is identified, the Commission must then consider whether to exercise its discretion to vary the agreement. Decisions made under the Workplace Relations Act 1996 concluded that the exercise of the Commission’s discretion under the corresponding provision was exercisable having regard to the mutual intention of the parties at the time the agreement was made. Under the current legislation, an enterprise agreement is not made between parties. It is made when a majority of relevant employees vote to approve the agreement (s 182). Nevertheless, a more fundamental point discernible in these earlier decisions remains relevant, namely that the Commission is invested with discretion to ‘remove ambiguity or uncertainty’, not to give effect to a new and substantive change to the agreement. Applications that seek the latter must be made under s 210 of the Act. A decision of the Commission under s 217 to remove uncertainty or ambiguity should give effect to the substantive agreement that was ambiguously or uncertainly reduced to writing in the terms of the enterprise agreement.

[5] It is therefore necessary to ascertain, in respect of the provision or provisions that are the subject of an application under s 217, what the relevant agreement in fact was. Unless this can be established, it is difficult to see how the Commission could safely exercise its discretion to vary the agreement under s 217, because it could not be confident that a variation of the agreement would not go beyond removal of ambiguity or uncertainty and effectuate a substantive alteration to the agreement.

[6] In my view, clause 24.6 of the Agreement is not ambiguous. It is not susceptible of more than one legitimate interpretation. Rather, the single sentence that comprises the clause simply ends, without stipulating what is to occur ‘if the required period in a higher grade position is for six months or more’. However, in my view the clause is clearly uncertain. It sets out to make provision for a particular circumstance, but fails to do so. There is absence of meaning where clearly meaning was intended.

[7] The question then arises as to how the Agreement might be varied to remove this uncertainty. It would be impermissible for the Commission to create a new provision to fill the void, or for the employer and union now to agree on some substantive arrangement that was not in existence at the time the agreement was made. Further, the fact that an employer and a union agree about the intended meaning of a particular provision, and how the text of an enterprise agreement ought to be amended, is not determinative of those questions, although it is relevant.

[8] In the present matter, the parties’ joint submission persuasively establishes that the agreement in relation to the content of clause 24.6 was to reflect the corresponding term of a copied state award made under Part 6-3A of the Act, which deals with transfer of employment from a state public sector employer. The joint submission explains that, after the relevant transfer occurred, the employer made application to vary the copied state award under s 768AX of the Act, in the course of which the instrument was renamed the Leighton Boral Amey NSW Pty Ltd Wages Staff Award 2013. That instrument expired earlier this year. The company and the union then made a new enterprise agreement under Part 2-4 of the Act, which I approved on 23 March 2019.

[9] Clause 24.7 of the copied state award read: ‘If the required period of relief in a higher graded position is for six months or more, expressions of interest must be sought from the local work area.’ The first phrase is the same as the text in clause 24.6 of the Agreement; the second phrase reflects the wording that the application now seeks to insert into clause 24.6, so as to remove the uncertainty and reflect the actual agreement on this matter.

[10] The joint submission explains that the wording of this provision was in fact the subject of bargaining between the company and the union as bargaining representative for employees to be covered by the new agreement. The company originally sought to remove the provision and later proposed changes to it, but ultimately dropped its claims in relation to the clause. It was agreed that the current wording of the copied state award would be retained.

[11] I accept the joint submission in relation to these matters. In the particular circumstances of this case, I do not consider it necessary to call for sworn evidence of the intended meaning of the uncertain text or employees’ understanding of this, as might be required in other cases. There is a clear and convincing explanation of how the text was supposed to read.

[12] As to the ABN, I accept that the erroneous reference creates uncertainty in relation to the identity of the employing entity that is bound by the Agreement. The number specified in clause 2.1(a) of the Agreement is ABN 47 166 154 063, whereas the correct ABN is 47 166 574 063.

[13] I find that the Agreement is uncertain in the two respects identified above, and consider that I should exercise my discretion to remove those uncertainties by varying the Agreement as follows:

(a) Clause 24.6 is to read: ‘If the required period of relief in a higher graded position is for six months or more, expressions of interest must be sought from the local work area.’

(b) In clause 2.1(a), ‘ABN 47 166 154 063’ is deleted and replaced with ‘ABN 47 166 574 063’.

[14] The variations will operate from 30 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE502469 PR709647>

 1   AE502469.

 2   See United Voice v MSS Security Pty Ltd[2016] FWCFB 4979 at [19] and Bradnam’s Windows and Doors Pty Ltd [2019] FWCA 979 at [11].