DECISION

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)

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, 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.

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.

[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 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.

[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:

(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.

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 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 Australia 15 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 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.

[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 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.

[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:

“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)

 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