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austlii:cth/FWCA/2025/2152
General information, not legal advice.
FWCA
2025-07-01
Original judgment source is linked above.
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division
Application for variation of the Patrick Terminals Enterprise Agreement 2026
[1] An application has been made to vary the Patrick Terminals Enterprise Agreement 2026 (the Agreement) to remove ambiguity or uncertainty. The Agreement is a single enterprise agreement and the application has been made by the Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division (the MUA/the Applicant) pursuant to s.217 of the Fair Work Act 2009 (the Act).
[2] The Agreement was approved by the Commission on 2 May 2025 and came into operation on 9 May 2025. It has a nominal expiry date of 31 December 2028.
[3] The variation proposed is in relation to Clause 14 - Consultation and Change and Schedule 8 - Right of Entry/Delegates Charter. The MUA seeks to vary the Agreement to remove ambiguity or uncertainty by inserting a new clause 6.5 into the Agreement as follows:
"6.5 This agreement incorporates the "Model Consultation Term" and the "Workplace Delegates' Rights" clause found at clause 30A of the Stevedoring Industry Award 2020.
To the extent there is any inconsistency between either the "Model Consultation Term" or the "Workplace Delegates Rights" and the balance of this Agreement, the more beneficial term will prevail."
[4] A copy of the Proposed Variation is attached to this Decision at Annexure A.
[5] On 23 May 2025, the Employer, wrote to my Chambers advising that it does not oppose the application as made by the MUA.
[6] Section 217 of the 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;
(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."
[7] The Applicant is an employee organisation covered by the Agreement and has standing to make the application.
[8] The principles to be applied by the Commission when determining s.217 applications were summarised by Deputy President Gostencnik in The Trustee for ePharmacy Unit Trust T/A ePharmacy,[1] as follows:
"• 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;[2]
• 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;[3]
• The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions and an arguable case is made out for more than one contention;[4]
• However, the Commission must make a 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;[5]
• 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 judgement as to whether the wording of a provision is susceptible to more than one meaning;[6]
• However, the task of the Commission is to determine whether a provision in an agreement is ambiguous or uncertain. That task is distinct from determining the proper construction or true meaning of a provision of an agreement.[7]
• A provision in an agreement may be ambiguous even though it is capable of interpretation and it is not necessary for the Commission to interpret a provision of an agreement to reach a conclusion concerning the presence of ambiguity or uncertainty.[8] Consequently there is no need for the Commission to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements. Moreover, the Commission is obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, "equity, good conscience and the merits of the matter" (s 578) and it is not bound by the rules of evidence and procedure in relation to a matter (s 591). These provisions of the Act apply to the discharge by the Commission's functions under s 217(1),[9] including by allowing the Commission to have regard to evidence of the parties' common intention and to the history of agreement provision as part of the "equity, good conscience and the merits" of the matter.[10]
• Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission may also have regard to the mutual or common intention of the parties at the time the agreement was made.[11]"
[9] I am satisfied that there is sufficient ambiguity in relation to the Consultation clause and the Right of Entry/Delegates Charter clause to warrant a modification of the Agreement that was endorsed by employees.
[10] I am satisfied that the proposed variation will correct these uncertainties in a manner that is consistent with the understanding held by the parties at the time the Agreement was made.
[5] See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57].
[7] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [67].
Printed by authority of the Commonwealth Government Printer
(2004) 134 IR 43