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Fair Work Act 2009
s.217—Enterprise agreement
Bradnam’s Windows and Doors Pty Ltd
(AG2019/100)
BRADNAM’S WINDOWS & DOORS PTY LTD (DANDENONG SOUTH
MANUFACTURING) AND AUSTRALIAN WORKERS’ UNION
ENTERPRISE AGREEMENT 2018
Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 FEBRUARY 2019
Application for variation of the Bradnam’s Windows & Doors Pty Ltd (Dandenong South
Manufacturing) and Australian Workers’ Union Enterprise Agreement 2018 because of
ambiguity or uncertainty; appropriate that uncertainty be removed; new provisions inserted;
agreement varied.
[1] An application has been made by Bradnam’s Windows and Doors Pty Ltd (Applicant)
pursuant to s.217 of the Fair Work Act 2009 (Act) to vary the Bradnam’s Windows & Doors
Pty Ltd (Dandenong South Manufacturing) and Australian Workers’ Union Enterprise
Agreement 20181 (Agreement) to remove ambiguity and uncertainty.
[2] The Australian Workers’ Union is covered by the Agreement and supports the
application. The parties were directed to file joint submissions in support of the application
for the matter to then be determined on the papers without the need for a hearing.
[3] The application proposes a variation to clauses 1.1, 2.1(a) and 14.3 of the Agreement
in order to amend the specified location in the Agreement from the Dandenong South
premises to 46 Lathams Road, Carrum Downs to clarify that the Agreement is to apply to the
employees working at the Carrum Downs site.
[4] The Agreement was lodged for approval with the Commission on 6 August 2018 and
was subsequently approved on 23 November 2018. In the meantime, the Applicant relocated
its manufacturing operations from 9 Quality Drive, Dandenong South to 46 Lathams Road,
Carrum Downs. The Applicant does not operate from the Dandenong South site. The
Agreement does not on its face cover the employees working at the Carrum Downs site. It is
submitted that this has caused confusion and uncertainty amongst employees as to the
1 AE500845
[2019] FWCA 979
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCA 979
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appropriate industrial instrument that is the source of their terms and conditions of
employment.2
[5] In order that the uncertainty identified is removed, the Applicant proposes the
following amendments.
[6] Firstly, it proposes that the definition of Company contained in clause 1.1 be amended
by removing the words “(Dandenong South Manufacturing), 9 Quality Drive Dandenong
South Vic 3175.”
[7] Secondly, it proposes that clause 2.1(a) be varied by deleting the address and inserting
the current location.
[8] Thirdly, it proposes to amend clause 14.3 by deleting “(note this refers specifically to
the 9 Quality Drive Dandenong South Site only).”
[9] Section 217 of the Act provides the following:
“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.”
[10] The Applicant is the employer covered by the Agreement and therefore has standing to
make the application.
[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;3
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;4
2 Outline of joint submissions dated 12 February 2019 at [23]
3 See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]
4 Ibid at [29]
[2019] FWCA 979
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;5
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;6
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;7 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.8
[12] At the time that the Agreement was made, the Applicant operated its manufacturing
business at the Dandenong South premises. The employees approved the Agreement
specifying the location at which they were then employed. The relocation of the Applicant’s
manufacturing business to another site has subsequently created uncertainty as to coverage of
the Agreement. The manufacturing business in which the employees were employed when the
Agreement was made has moved to a new location along with the employees employed in the
business. Save for the relocation, it is not evident that there is any change to the business or to
the work performed by the employees in the business. In the circumstances, I am satisfied that
the location references in the Agreement create an uncertainty which engages with s.217 of
the Act. I am also satisfied that I should amend the Agreement to remove the uncertainty and
that it is appropriate to do so in the manner proposed.
[13] In order to remove an uncertainty, I propose to vary the Agreement as outlined earlier.
The application is granted and a variation order is issued separately.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AE500845 PR704967
5 Ibid at [31]
6 See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]
7 See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v
CFMEU (PR903843); Re CFMEU Appeal (Print R2431)
8 See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]
VOISSINNO
