Matter:  FWCFB 161
Catanzariti VP, Hamilton DP, Bissett C
ENTERPRISE AGREEMENTS – ambiguity or uncertainty – ss.217, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission dismissed an application for variation of the Bianco Walling P/L (Gepps Cross Site) Enterprise Agreement 2016 – Off Site on the basis that the scope clause was uncertain and ambiguous – appellant sought an order to delete the phrase 'concrete manufacturing operations' and to insert in lieu the words 'Pre-cast division' – Commission found scope clause was not ambiguous or uncertain – held it was not able to consider whether a variation to the clause should be made, as the jurisdictional criteria set out s.217 of the FW Act had not been met – grounds of appeal relate to whether the Commission was in error in concluding that it could not have recourse to evidence of surrounding circumstances unless first finding that there was ambiguity in the scope clause – permission to appeal granted – Full Bench of the view that the appeal raised important questions concerning the application of agreement interpretation principles – Commission must first identify the existence of ambiguity or uncertainty before its discretion to vary an enterprise agreement is enlivened – Berri considered – Full Bench found no error in the Commission's findings, approach and conclusion – regard 'may' be had to evidence of surrounding circumstances to assist in determining whether ambiguity exists however it does not follow that regard 'must' be had – recourse to surrounding circumstances in determining whether ambiguity exists depends on the circumstances of each particular case – Full Bench held the ordinary meaning of the words in the 2016 Agreement were plainly clear – ambiguity does not simply arise because there are rival contentions advanced – permission to appeal granted – appeal dismissed.
Fair Work Division of the Federal Court of Australia
Application SAD83/2019 filed 12 April 2019 seeking relief under s.39B of the Judiciary Act.
This matter was heard by a Full Court on 27 August 2019. Judgment is reserved.