Fair Work Act 2009

Section 217 - Application to vary an agreement to remove an ambiguity or uncertainty

Application for variation of the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 - Off Site - Clause 1.2

[1] This matter is an application by Bianco Walling Pty Ltd under section 217 of the Fair Work Act 2009 (FW Act) to vary an enterprise agreement to remove an ambiguity or uncertainty.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has taken an interest in this application and has, to date, appeared in response.

[3] I conducted a conference of the parties on 1 February 2018 at which time the matter did not resolve.

[4] Following the conference, I issued directions on 6 April 2018 at which time I listed the matter for hearing and determination on 25 June 2018.

[5] The directions I issued on 6 April 2018 required Bianco Walling Pty Ltd and the CFMMEU to provide written submissions to the Fair Work Commission (the Commission) should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter on 25 June 2018.

[6] By email dated 19 April 2018 the Commission received a submission from Mr Earls representing Bianco Walling Pty Ltd seeking such permission under section 596 of the FW Act.

[7] The CFMMEU does not seek permission.

[8] By email communication dated 19 April 2018 the CFMMEU does not object to the employer being granted permission, noting that the employer has agreed not to object to the Union's standing in this matter.

[9] I have considered these submissions and the relevant provisions of the FW Act.

[10] The hearing on 25 June 2018 concerns an important but technical matter concerning the coverage provision of the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 - Offsite. It requires interpretation of the Agreement in order to determine whether an ambiguity or uncertainty exists. If so, it then requires consideration of whether the Agreement should be varied, and if so, how.

[11] These are matters that potentially involve some complexity. I accept that navigating them in a contested hearing is outside of the ordinary remit of the employer's internal human resources. I further note that in the course of dealing with the dispute, at various stages Bianco Walling Pty Ltd has sought assistance from legal representatives.

[12] Taking these factors into account, as well as the CFMMEU's conditional consent, I accept that the conduct of this matter is likely to be more efficient if the employer is legally represented at the hearing.

[13] I grant permission to Bianco Walling Pty Ltd under section 596 of the FW Act.

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