1
Fair Work Act 2009
Section 217 - Application to vary an agreement to remove an ambiguity or uncertainty
Bianco Walling Pty Ltd T/A Bianco Precast
(AG2017/5792)
Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON ADELAIDE, 17 SEPTEMBER 2018
Application to vary an enterprise agreement to remove an ambiguity or uncertainty – Bianco
Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 Off Site – scope clause –
concrete manufacturing operations – common intention – ordinary meaning – no ambiguity
or uncertainty – application dismissed
[1] On 27 November 2017 an employer, Bianco Walling Pty Ltd trading as Bianco Precast
(Bianco) applied to the Fair Work Commission (the Commission) for variation of the Bianco
Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Off Site (the 2016
Agreement) to remove an ambiguity or uncertainty. The application was made pursuant to
section 217 of the Fair Work Act 2009 (the FW Act).
[2] Bianco is the employer party to the 2016 Agreement. It has standing to make this
application.1
[3] Bianco seeks to vary clause 1.2 of the 2016 Agreement. Clause 1.2 is situated in Part 1
of the 2016 Agreement headed ‘Administration’. Clause 1.2 is commonly referred to as a
scope clause. It provides:
“This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco
employees that are engaged in the classifications contained in this agreement who
work in Bianco’s concrete manufacturing operations, including the erection of these
products on-site and the installation of props and frames (employees).”
[4] Bianco claims that the clause is uncertain and ambiguous. It seeks an order deleting
the phrase “concrete manufacturing operations” and inserting in lieu the words “Pre-cast
division”.
[5] In 2017 a trade union, the Construction Forestry Mining and Energy Union (CFMEU)
(as it then was) made a claim on Bianco that the 2016 Agreement applied to an employee
working in Bianco’s Structural division. As this decision sets out, historically and currently,
[2018] FWC 5823 [Note: An appeal pursuant to s.604 (C2018/5286) was
lodged against this decision. - refer to Full Bench decision dated
11 January 2019 [[2019] FWCFB 161] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb161.htm
[2018] FWC 5823
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Bianco apply the Agreement to its Pre-cast division only, not its Structural division (nor its
Civil division). Bianco have rejected that claim. It responded by making this application.
[6] Although not covered by the 2016 Agreement, the CFMEU sought to be heard on this
application. I considered the CFMEU to have a material interest and granted leave for the
CFMEU to participate in a conference and subsequently in the hearing of the matter.
[7] I conducted a conference of Bianco and the CFMEU on 1 February 2018 at which
time the matter did not resolve.
[8] Following the conference, I issued directions on 6 April 2018 and listed the matter for
hearing and determination on 25 June 2018.
[9] By decision dated 24 April 2017 I granted Bianco permission to be represented by a
legal practitioner at the hearing of this matter.2
[10] I heard the matter on 25 June 2018. Bianco called three witnesses:
Joe Corbo (Chief Financial Officer);
Graham Martin (an employed Quality Assurance Representative); and
Andrew Scalzi (an employed Carpenter).
[11] I admitted witness statements and documentary material, both historical and current,
into evidence. Both Bianco and the CFMMEU (as it now is) made oral and written
submissions, and referred me to authorities on which they rely. I reserved my decision.
The Facts
[12] There is no relevant dispute over the historical or current facts. I make these findings
based on the documentary and oral evidence before me.
The Current Agreement
[13] The 2016 Agreement is a single enterprise agreement. No trade union is covered by
the Agreement nor was involved in its making. It was made on 2 September 2016. It was
approved by the Commission on 31 October 2016 with certain undertakings. It came into
operation on 7 November 2016. It remains in operation. It has a nominal expiry date of 30
October 2020.
[14] The 2016 Agreement was varied by the Commission on 25 September 2017 on the
employer’s application to bring the Agreement into compliance with the Commonwealth
Code for the Tendering and Performance of Building Work 2016. The employer provided
undertakings at the time of the 2016 Agreement’s approval and also its variation by the
Commission. No trade union appeared or intervened in its approval or variation.
[2018] FWC 5823
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Company Operations
[15] Bianco is a private company in the commercial construction industry. It commenced in
1984 as a bricklaying company but by about 2000 it ceased bricklaying operations and
commenced manufacturing pre-cast concrete panels for use in the industry. In 2004 it
purchased a business that manufactured pre-cast concrete architectural panels. In 2005 it
combined that business with its pre-cast operations and located both at a common site in
suburban Gepps Gross, Adelaide. This became known as Bianco’s Pre-cast division.
[16] In 2006, Bianco purchased a business (based in suburban Kilkenny) that manufactured
civil construction and drainage products including T-beams. This became known as Bianco’s
Structural division. In 2011 Bianco closed the Kilkenny site and co-located the Structural
division to the Gepps Cross site where the Pre-cast division also operated. Bianco’s Civil
division had, by then, moved to a different site.
[17] Each of the products manufactured by the Pre-cast division, the Structural division and
the Civil division are manufactured of concrete. There are however manufacturing
differences. Pre-cast division products are typically designed by architects and engineers for a
specific project. Employees apply a “finish” to such products. In contrast, Structural division
products such as T-beams are not unique; they are manufactured from a purpose built pit on
the Gepps Cross site. Employees “patch” blemishes but do not apply the same level of finish
to those products. Bianco employees install some Pre-cast division products (such as panels)
at client sites, but Structural division products are not installed by Bianco.
[18] Bianco operates each of its three divisions (Pre-cast, Structural and Civil) as separate
business units, albeit by the one company. Tendering is separately undertaken. Management
and supervision of production (including quality assurance) is separate. Costings, KPIs and
profit and loss reports are separate, and only upper management levels have access to such
data for each division.
[19] Workforces are also separately organised albeit in the case of Pre-cast and Structural
(and a handful of Civil employees), located on the same (Gepps Cross) site but in
geographically distinct operational areas.3 Employees rarely move between divisions, but may
do so from time to time (for example, to avoid being laid off due to downturns in work).
Employees in each division are classified by separate classification structures. There were (at
the date of hearing) approximately 122 employees in the Pre-cast division; 24 in the Structural
division; and 22 in the Civil division.4 Labour costs relevant to each division are allocated to
the KPI and profit and loss accounts of that division.
Current and Past Agreements
[20] Only employees in the Pre-cast division are employed by Bianco under the 2016
Agreement.
[21] Employees employed by Bianco in the Structural division are employed under the
Concrete Products Award 2010, a modern award of the Commission.
[2018] FWC 5823
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[22] There are four predecessor Agreements to the 2016 Agreement: the 2001 Agreement,
the 2004 Agreement, the 2008 Agreement and the 2011 Agreement. Each of these
Agreements was approved by the relevant industrial authority.
[23] The evidence before me is that Bianco’s intention and practice was and has been that:
the 2001 Agreement applied to both the (offsite) Pre-cast division and the then (on
site) bricklaying work but to no other employees;
the 2004 Agreement applied to the (offsite) Pre-cast division only and to no other
employees;
the 2008 Agreement applied to the (offsite) Pre-cast division only and to no other
employees;
the 2011 Agreement applied to the (offsite) Pre-cast division only and to no other
employees; and
the 2016 Agreement applies to the (offsite) Pre-cast division only and to no other
employees.
[24] I also find on the evidence that:
only employees in the Pre-cast division have been notified of, participated in
negotiations for or voted on the 2004 Agreement, the 2008 Agreement, the 2011
Agreement and the 2016 Agreement (including its 2017 variation);
no employees from either the Structural or Civil divisions have sought to be included
in such negotiations or votes for approval of the aforementioned Agreements; and
not until the CFMEU made a claim on Bianco in 2017 that the 2016 Agreement
applied to its Structural division had this been an industrial or workplace issue for the
company or its employees.
[25] The scope clauses of each of the 2004, 2008, 2011 and 2016 Agreements are relevant.
They are set out below.
[26] The 2004 Agreement:
1.6 This Agreement will apply in the State of South Australia to all employees of
BIANCO WALLING PTY LTD whilst they are performing work as defined and
covered by the National Joinery and Building Trades Products Award 2002.
[27] The 2008 Agreement:
1.2 This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco
employees that are engaged to work away from construction sites (ie. off-site) as
[2018] FWC 5823
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labourers, panel makers, concrete finishers, crane drivers, riggers, carpenters and
boilermakers at Bianco’s Gepps Cross facility (employees).
[28] The 2011 Agreement:
1.2 This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco
employees that are engaged in the classifications contained in this agreement who
work in Bianco’s concrete manufacturing operations, including the erection of these
products on-site (employees).
[29] The 2016 Agreement:
1.2 This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco
employees that are engaged in the classifications contained in this agreement who
work in Bianco’s concrete manufacturing operations, including the erection of these
products on-site and the installation of props and frames (employees).
[30] The titles of the aforementioned Agreements also altered over this period. Whereas the
2004 Agreement was known as the Bianco Walling Pty Ltd Enterprise Agreement 2004, the
2008, 2011 and 2016 Agreements came to be described as the Bianco Walling Pty Ltd (Gepps
Cross Site) Enterprise Agreement – Off Site.
[31] It is apparent from the above that:
the 2008 Agreement’s scope was restricted to the “Gepps Cross facility” but that the
2011 and 2016 Agreements were not so expressed;
the phrase “who work in Bianco’s concrete manufacturing operations” was first
included in the 2011 Agreement and retained in the 2016 Agreement;
the phrase “including the erection of these products on-site (employees)” was first
used in the 2011 Agreement but was varied by the 2016 Agreement to read “including
the erection of these products on-site and the installation of props and frames
(employees)” and
to varying degrees, the scope clauses of each of the 2004, 2008, 2011 and 2016
Agreements differed from its predecessor.
[32] I accept the evidence of Mr Corso that it was Bianco’s understanding that the
reference to “concrete manufacturing products” in the 2011 and 2016 Agreements was
intended by the company and as far as it understood, its employees, to be a reference only to
the pre-cast concrete panels and products manufactured in Bianco’s Pre-cast division.
[33] I also accept the evidence of Mr Scalzi, who has worked in the Pre-cast division for
approximately 12 years, that only Pre-cast employees were involved in negotiations for the
2016 Agreement and the 2017 variation, and that employees of the structural division were
not involved in 2011, 2016 or 2017.
[2018] FWC 5823
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[34] I further accept the evidence of an employee then in the Structural division, Mr
Martin, that the structural division employees knew that discussions were occurring between
the employer and the Pre-cast employees about their agreement in 2016 and 2017 but that
Structural division employees were not involved.
[35] It is also relevant to note that when applying to the Commission for approval, Bianco
nominated both the Concrete Products Award 2010 and the Building and Construction
General Onsite Award 2010 as modern awards which would cover employees under the 2016
Agreement and the 2017 variation.5 These awards were said to be relevant to the application
of the Better Off Overall Test (BOOT) by the Commission under the FW Act.
Consideration
The Legal Principles
[36] Section 217 of the FW Act provides:
“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.”
[37] A finding of ambiguity or uncertainty in an enterprise agreement is a condition
precedent for the exercise of power under section 217.6
[38] An agreement may be ambiguous or uncertain if a relevant clause is susceptible to
more than one meaning or if its meaning is not clear.7 This involves a consideration of the
terms of the agreement having regard to the ordinary meaning of the relevant words.8
[39] When dealing with applications under section 217 of the FW Act, the principles
developed by the Commission concerning the interpretation of enterprise agreements can be
usefully applied.9 Those principles are well established by full bench decisions in Golden
Cockerel10 as varied by AMWU v Berri Pty Limited.11 They, in turn, provide that the general
law in the context of the interpretation of statutes can be of utility.
[40] The principles in Berri are as follows:12
1. The construction of an enterprise agreement, like that of a statute or contract, begins
with a consideration of the ordinary meaning of the relevant words. The resolution of a
disputed construction of an agreement will turn on the language of the agreement
having regard to its context and purpose. Context might appear from:
[2018] FWC 5823
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(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it
operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to
achieve what might be regarded as a fair or just outcome. The task is always one of
interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by
reference to that which a reasonable person would understand by the language the
parties have used to express their agreement, without regard to the subjective
intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made
pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It
may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made
pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who
are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer
may make an enterprise agreement ‘with the employees who are employed at the time
the agreement is made and who will be covered by the agreement’. Section 182(1)
provides that an agreement is ‘made’ if the employees to be covered by the agreement
‘have been asked to approve the agreement and a majority of those employees who
cast a valid vote approve the agreement’. This is so because an enterprise agreement is
‘made’ when a majority of the employees asked to approve the agreement cast a valid
vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901
(Cth) applies, however the modes of textual analysis developed in the general law may
assist in the interpretation of enterprise agreements. An overly technical approach to
interpretation should be avoided and consequently some general principles of statutory
construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an
agreement has a plain meaning or if it is ambiguous or susceptible of more than one
meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in
determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances
will not be admitted to contradict the plain language of the agreement.
[2018] FWC 5823
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10. If the language of the agreement is ambiguous or susceptible of more than one
meaning then evidence of the surrounding circumstance will be admissible to aide the
interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to
evidence tending to establish objective background facts which were known to both
parties which inform and the subject matter of the agreement. Evidence of such
objective facts is to be distinguished from evidence of the subjective intentions of the
parties, such as statements and actions of the parties which are reflective of their actual
intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to
establish objective background facts known to all parties and the subject matter
of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common
assumption.
13. The diversity of interests involved in the negotiation and making of enterprise
agreements (see point 4 above) warrants the adoption of a cautious approach to the
admission and reliance upon the evidence of prior negotiations and the positions
advanced during the negotiation process. Evidence as to what the employees covered
by the agreement were told (either during the course of the negotiations or pursuant to
s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining
positions taken by the employer or a bargaining representative during the negotiation
of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision
in an enterprise agreement with a disputed meaning, but it cannot be used to disregard
or rewrite the provision in order to give effect to an externally derived conception of
what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances,
subsequent conduct may be relevant to the interpretation of an industrial instrument.
But such post-agreement conduct must be such as to show that there has been a
meeting of minds, a consensus. Post-agreement conduct which amounts to little more
than the absence of a complaint or common inadvertence is insufficient to establish a
common understanding.
[41] In undertaking this task I also bear in mind the cautionary note expressed by the
Commission in DP World Brisbane Pty Ltd v The Maritime Union of Australia:13
“Importantly, the task of interpreting an enterprise agreement does not involve re-
writing a provision in order to give effect to the Commission’s view of what would be
[2018] FWC 5823
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fair and just, without regard to the terms of the agreement. As Madgwick J observed
in Kucks v CSR Limited:
‘But the task remains one of interpreting a document produced by another or
others. A court is not free to give effect to some anteriorly derived notion of
what would be fair or just, regardless of what has been written into the award.
Deciding what an existing award means is a process quite different from
deciding, as an arbitral body does, what might fairly be put into an award. So,
for example, ordinary or well-understood words are in general to be accorded
their ordinary or usual meaning.’”
[42] I also have regard to the further cautionary note recently expressed by the Commission
in CFMMEU v Qube Ports Pty Ltd:14
“I note that the Berri principle, that subsequent conduct may be relevant to the
interpretation of an industrial instrument, is qualified by the cautionary note that post-
agreement conduct must be such as to show that there has been a meeting of the minds;
a consensus. Absence of complaint or common inadvertence is insufficient to establish
a common understanding. The mere fact that successive agreements may have
contained the same provision and no claim was made under an earlier instrument will
not sustain the assertion that the parties had a common understanding as to the
meaning of a provision.”
[43] Consistent with the recent full bench decision in Glen Cameron Nominees Pty Ltd v
Transport Workers’ Union of Australia15 I adopt the principles as set out in Berri.
Consequently, I must:
a) begin my analysis with a consideration of the ordinary meaning of the words of the
relevant clauses in the Agreement;
b) determine whether the Agreement has a plain meaning;
c) review the text of the Agreement as a whole;
d) not rewrite the Agreement to achieve what might be regarded as a fair or just
outcome;
e) in determining the objective intention of the parties, do so by reference to what a
reasonable person would understand by the language used in the Agreement;
f) not adopt an overly technical approach to the interpretation of the Agreement; and
g) not contradict the plain language of the Agreement.
The Submissions
[44] Bianco submit that clause 1.2 of the 2016 Agreement is ambiguous or uncertain and
that it should be varied to remove that ambiguity or uncertainty. The ambiguity or uncertainty
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Bianco asserts is the meaning of the scope clause as a whole and in particular the phrase
“Bianco’s concrete manufacturing operations”. It says that the phrase “concrete
manufacturing operations” is ambiguous or uncertain because of the possessive immediately
prior, “Bianco’s”. It says that the phrase only has a plain meaning when interpreted in the
context of Bianco’s operations, not concrete manufacturing operations in other businesses or
in the abstract. Accordingly, it seeks an order deleting the phrase “concrete manufacturing
operations” and inserting in lieu the words “Pre-cast division”. It says that this would provide
the clause a certain meaning and remove the ambiguity.
[45] Bianco also submit that such a variation would accord with what it considers to be the
common understanding of both the employer and its employees since the 2016 Agreement
was made and came into operation, and prior.
[46] The CFMMEU submit that there is no ambiguity or uncertainty in the meaning of the
scope clause and in particular none in the phrase “Bianco’s concrete manufacturing
operations”. It says that this is not a phrase that refers to a company specific lexicon, but
simply a clear description of business operations that can be described as “concrete
manufacturing”. It says that the 2016 Agreement draws no distinction elsewhere between
Bianco’s particular use of language and the generally understood plain meaning of words, and
does not do so in the scope clause.
[47] The CFMMEU says that any employees of Bianco employed in the relevant
classifications who work in its concrete manufacturing operations are covered by the 2016
Agreement irrespective of what operational division they work in.
[48] The CFMMEU further submits that evidence of surrounding circumstances (including
even objective facts or common understandings of what the scope clause means or how it has
operated) is not relevant given that the words in clause 1.2 have a plain meaning and are not
uncertain or ambiguous.
[49] Both Bianco and the CFMMEU rely on the final phrase of the scope clause “including
the erection of these products on-site and the installation of props and frames (employees)” to
support their contentions. Bianco says that this is a phrase that aids an interpretation limiting
clause 1.2 to its Pre-cast division because (as a matter of fact) only the Pre-cast division erect
on construction sites the products they manufacture off site (at Gepps Cross).
[50] In contrast, the CFMMEU say that this is not a phrase of limitation.
Consideration
[51] I consider that the aforementioned principles for the interpretation of agreements set
out in Golden Cockerel, as amended by Berri and as applied by decisions such as Glen
Cameron Nominees should guide my determination of this matter.
[52] The threshold question is whether the ordinary meaning of the words in the clause 1.2
of the 2016 Agreement is ambiguous or uncertain.
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[53] I am satisfied on the evidence that applying clause 1.2 to Bianco’s Structural division
or Civil division is not consistent with either the intention or understanding of Bianco or its
employees at the time they entered into the 2016 Agreement or voted on and made the 2017
variation to the Agreement. I make this finding noting the caution that the diversity of
interests involved in the negotiation and making of enterprise agreements warrants a cautious
approach to the admission and reliance on evidence of positions advanced during the
negotiation process.16 Even applying that caution, the evidence before me from both the
employer and employee interests is that the 2016 Agreement was not intended to apply
beyond the Pre-cast division.
[54] Further, I am also satisfied on the evidence and find that both conduct and practice
prior to and at the time of making the 2016 Agreement and since objectively establishes a
common intention between Bianco and its employees that clause 1.2 applies to the Pre-cast
division only. Although the concept of “common purpose”17 is a “limited principle”18 and “is
only capable of application where there is clear evidence of a common understanding as to the
meaning of the provision and that the parties did not act for another reason, including
common inadvertence”19 the evidence before me is clear in this respect and meets that
threshold.
[55] However, these findings are only relevant if recourse to evidence of these surrounding
circumstances is relevant.
[56] On the legal authority before me, recourse can be had to such evidence when
interpreting an agreement only where the ordinary or plain meaning of the words used in the
agreement are uncertain or ambiguous.
[57] Clause 1.2 of the 2016 Agreement reads as follows:
“This Agreement is between Bianco Walling Pty Ltd (Bianco) and all Bianco
employees that are engaged in the classifications contained in this agreement who
work in Bianco’s concrete manufacturing operations, including the erection of these
products on-site and the installation of props and frames (employees).”
[58] Is clause 1.2 either as a whole or in particular the phrase “Bianco’s concrete
manufacturing operations” ambiguous or uncertain in the sense that it is susceptible to more
than one meaning or that its meaning is not clear?
[59] I think not.
[60] Undoubtedly there is a dispute between Bianco and the CFMMEU over the meaning
and application of the scope clause evidenced by the fact that two different interpretations are
advanced in this proceeding. However, the mere existence of a disputed interpretation is not
sufficient to render words in an industrial instrument uncertain or ambiguous in a legal sense.
That conclusion can only be drawn from an examination of the language of the relevant clause
in the context of the instrument as a whole.20
[61] The phrase “concrete manufacturing operations” is not uncertain or ambiguous. It
means what it says; business operations in which concrete products are manufactured. Even
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interpreting these words in isolation, leads me to no different conclusion. The noun “concrete”
is not, for relevant purposes, a word without a known meaning (whether “concrete” has the
same meaning as “cement” for example may be a different matter, but that issue is not before
me).
[62] The Oxford dictionary defines “concrete” to mean:21
“a composition of gravel, sand, cement, and water, used for building”.
[63] The Macquarie dictionary defines “concrete” to mean:22
“an artificial stone-like material used for foundations etc, made by mixing cement, sand
and broken stones etc, with water, and allowing the mixture to harden”.
[64] Applying either of these definitions gives effect to the ordinary meaning of the word
“concrete” and the application of that ordinary meaning to clause 1.2 creates no particular
ambiguity or uncertainty.
[65] Further, the noun “manufacturing” (from the verb “to manufacture”) has an ordinary
and common meaning associated with an act of production and is not ambiguous or uncertain.
[66] The central issue before me (and principal contention advanced by Bianco) is whether
these ordinary meanings become ambiguous or uncertain because of the use of either the word
“Bianco’s” which precedes the phrase “concrete manufacturing operations” or the words
“including the erection of these products on-site (employees)” that follow it.
[67] Although there is some superficial attraction to the proposition that the possessive
“Bianco’s” is a word of qualification, I prefer the view that it is a word of description not
qualification. There is no other employer covered by the 2016 Agreement. It is a single
enterprise agreement. Words with plain meanings in a scope clause are not rendered
ambiguous or uncertain simply because that clause describes the business operation covered
by the agreement by reference to an employer covered by the agreement. This interpretation I
adopt gives a meaning to the word “Bianco’s”, albeit not the meaning contended by Bianco. It
does not offend the principle that “all words in an enterprise agreement must prima facie be
given some meaning and effect.”23
[68] In any event, even were it a word of qualification in the sense that some special
meaning was to be attributed to the type of “concrete manufacturing operations” covered by
the 2016 Agreement by referring to Bianco’s particular operations, I am far from satisfied that
Bianco’s concrete manufacturing operations are simply equated to the operations of its Pre-
cast division.
[69] Nor do I accept Bianco’s contention that the phrase “including the erection of these
products on-site (employees)” is a phrase of limitation. While the evidence does support a
finding that products manufactured by the Pre-cast division are erected on construction sites
whereas products manufactured in the Structural division are not, the use of the word
“including” in this phrase in clause 1.2 leads me to conclude that the phrase is an expression
of inclusion not limitation or exclusion.
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[70] Given that the ordinary meaning of the words used clause 1.2 of the 2016 Agreement
have a plain meaning, I am not able to take into account evidence and findings of surrounding
circumstances including common intention and objectively established past or current
practice. As the full bench said in Berri and Glen Cameron Nominees:24
“If the agreement has a plain meaning, evidence of the surrounding circumstances will
not be admitted to contradict the plain language of the agreement.”
[71] Bianco also advance the proposition that the classifications in the 2016 Agreement are
tailored to fit the work performed in its Pre-cast division. In particular it refers to the
classification of “Concrete Finisher/Crane Driver/Crane Rigger” and “Panel Maker”. Whilst
this provides some support for its interpretation, the converse has not been established, that is,
that the classifications of the 2016 Agreement could not have application to persons Bianco
employs outside of its Pre-cast division. I note the classification structure of the 2016
Agreement has other classifications such as “Labourer/Scaffolder” and
“Carpenter/Boilermaker”. I also have no basis to conclude whether a “Concrete Finisher” is
such a term of art that it would exclude employees who manufacture concrete products and
“patch” them but not “finish” those products.
[72] I have taken into account the nature of the instrument before me. It is an industrial
instrument made by private persons, being a private employer and its employees. This is an
important contextual consideration.25 I have also had regard to the long line of authority in
support of the proposition that a narrow or pedantic approach to the interpretation of industrial
instruments is to be avoided, and that fractured and illogical prose may be met by a generous
and liberal approach to construction.26
[73] However, to find an ambiguity or uncertainty in the language of clause 1.2 would be to
do that very thing; to apply a strained and narrow interpretation to words that neither in their
terms nor in context have such a meaning. I agree with both Kirby J and Callinan J in Amcor
Limited v CFMEU who each noted that a construction should “contribute to a sensible
industrial outcome”27 and one “that will operate fairly towards both parties”28. That course,
however, is only open if permitted by an examination of the language of the instrument in
question. To add the words sought by Bianco in the context of an interpretation case would be
to rewrite the provision in order to give effect to an externally derived conception of intention
or purpose.29 That is impermissible in the absence of finding ambiguity or uncertainty. It may
be a legitimate outcome sought in an industrial relations negotiation for variation or for a new
agreement, but not in an interpretation case.
[74] I appreciate that an application of the 2016 Agreement to operations other than the
Pre-cast division would not be consistent with the industrial relations practice or intention of
Bianco or its employees, and that the issue has arisen only recently by virtue of a trade union
not covered by the Agreement advancing that proposition.
[75] Be that as it may, on current authority, in an interpretation case those industrial
relations considerations, however real, are not matters that the Commission can take into
account. To do so would be to determine the matter in error. As recently said in CFMMEU v
Qube Ports Pty Ltd:
[2018] FWC 5823
14
“Should Qube consider that their commercial interests are compromised by my
interpretation of the Agreement it is open to them to seek to renegotiate this provision
in enterprise bargaining.”
Conclusion
[76] The issue before me is whether clause 1.2 of the Bianco Walling Pty Ltd (Gepps Cross
Site) Enterprise Agreement 2016 – Off Site is ambiguous or uncertain. I have found that it is
not. Accordingly, and irrespective of whether there is merit in such a variation, I am not able
to consider whether a variation to the clause should be made under section 217 of the FW Act.
[77] I draw attention to the parties to these proceedings that my decision concerns the
exercise of jurisdiction under section 217 of the FW Act only. I have expressed no concluded
view and much less made no order on whether any or all of the employees of Bianco
employed in its various divisions are covered by which or any industrial instrument. Nor do I
express a view on whether the 2016 Agreement was, in light of this decision, validly
approved.
[78] In these circumstances I dismiss the application and issue an order to this effect in
conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
T. Earls, with permission, for the Applicant
L. Weber and D. Kirner, for the Respondent
Hearing details:
25 June 2018.
Adelaide.
Printed by authority of the Commonwealth Government Printer
AE421967 PR700448
1 Section 217(1)(a)
WORK COMMISSION THE SEA
[2018] FWC 5823
15
2 [2018] FWC 2335
3 Part of the Pre-cast division is also currently operating from another suburban site at Croydon Park (A3 Statement of Joe
Corbo of 4 May 2018 paragraph 18.3)
4 A3 Statement of Joe Corbo of 4 May 2018 paragraph 20
5 JC19 at 3.1 and JC20 at 3.1
6 CFMMEU v Macmahon Contractors Pty Ltd [2018] FWCFB 4429 at [11]
7 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 per Mason J
8 Glen Cameron Nominees Pty Ltd v Transport Workers’ Union of Australia [2018] FWCFB 3744
9 CFMMEU v Macmahon Contractors Pty Ltd [2018] FWCFB 4429 at [11]
10 [2014] FWCFB 7447
11 [2017] FWCFB 3005 (‘Berri’)
12 [2017] FWCFB 3005 at [114]
13 [2013] FWCFB 8557 at [31]
14 [2018] FWC 5537 at [47]
15 [2018] FWCFB 3744 at [33]
16 Berri at [88]
17 Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [36]
18 Shop, Distributive and Allied Employees’ Association v Woolworths Ltd [2006] FCA 616 at 520
19 Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at 222
20 Amcor Limited v CFMEU (2005) 222 CLR 241 at 246 (‘Amcor’)
21 Australian Concise Oxford Dictionary 2nd edition
22 Macquarie Dictionary 3rd edition
23 Berri at [44]
24 Berri principle 9; Glen Cameron Nominees at [32]
25 Berri at [47]
26 Berri at [46]
27 Amcor at [18]
28 Amcor at [19]
29 Kucks v CSR Limited (1996) 66 IR 182
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2006/11.html
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2006/616.html
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2014/829.html#para36
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2014/829.html
