Application for approval of the Ventia (Maritime Asset Maintenance) Enterprise Agreement 2024 - s 217 application made to vary the Agreement to remove ambiguity or uncertainty - application granted.

[1] Ventia Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Ventia (Maritime Asset Maintenance) Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The title of the Agreement on the Notice of Employee Representational Rights (the NERR) is "BROADSPECTRUM (MARINE ASSET MAINTENANCE) ENTERPRISE AGREEMENT 2020" whilst the Agreement title in Clause 1 is "Ventia (Maritime Asset Maintenance) Enterprise Agreement 2024". Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

[3] On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The Agreement does not contain a delegates' rights term, as required by s 205A(1) of the Act. Under s 205A(2), the workplace delegates' rights term in Clause 36A of the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

[5] The Agreement was approved on 16 April 2025 and, in accordance with s 54, will operate from 23 April 2025. The nominal expiry date of the Agreement is 16 April 2029.

[6] On 12 March 2023, the Australian Workers' Union sought to be heard on the approval of the Agreement due to concerns regarding the coverage clause of the Agreement (Clause 4). Following a case management conference on 17 March 2025, my Chambers received an application made by Applicant under s 217 of the Act to vary the Agreement to remove an ambiguity or uncertainty in the Agreement.

[7] The application for the variation was made with the consent of the bargaining representatives. The variation sought is to insert the following text into Clause 3 of the Agreement (the Variation):

Maritime assets and facilities means coastal infrastructure assets currently owned or operated by the Department of Transport (Public Boat Harbours), local government or private marinas, including but not limited to the following: breakwaters, groynes, revetments, rock walls; carparks and boat ramps; jetties (floating/fixed) and wharves, including timber, plastic, steel, concrete; decking & boardwalks; drainage; navigational markers; beach, gardens and public amenities as well as other buildings or fixtures neighbouring these assets.

[8] The Agreement as initially filed does not have a definition of 'maritime assets and facilities'. The Applicant submits that as the coverage clause of the Agreement refers to maritime assets and facilities, without a definition, the coverage clause is susceptible to more than one meaning given the various definitions for "maritime", "asserts" and "facilities" respectively.

[9] The Applicant submits that a possible reading of the coverage clause is that the Agreement is intended to cover vessels, ships and offshore facilities such as platforms. This possible reading is inconsistent with the original intention of the parties to the Agreement, which is reflected in the proposed Variation for Clause 3.

[10] There was no objection to the s 217 application and the AWU confirmed that it no longer sought to be heard on the approval of the Agreement.

[11] 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.

[12] Section 217 of the Act allows the Commission to vary an enterprise agreement to remove an ambiguity or uncertainty. The Commission must first identify whether there is any ambiguity or uncertainty in the agreement.[1] This is a jurisdictional prerequisite to the exercise of the discretion to vary the agreement. If ambiguity or uncertainty is identified, the Commission must then consider whether to exercise its discretion to vary the agreement. In exercising its discretion, the Commission may remove ambiguity or uncertainty but is not to give effect to a new and substantive change to the agreement.[2]

[13] I am satisfied that the Applicant is the employer covered by the Agreement and that they have standing to make the application. I accept the Applicant's uncontested submissions that the reference to 'maritime assets and facilities' in Clause 4 without a definition gives rise to ambiguity or uncertainty. I am also satisfied that the proposed Variation removes that ambiguity or uncertainty, and it is appropriate to make the Variation sought.

[14] In accordance with s 217(2) of the Act, the Variation operates from 16 April 2025.

[15] The Applicant has submitted a copy of the Agreement with the Variation. The Agreement, as varied, will be published with this Decision.

[1] CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 [46]; see also Monash University v NTEU [2023] FWCFB 181 [16].

[2] CFMMEU & Ors v Specialist People Pty Ltd [2019] FWCFB 6307 [42]; see also Australian Workers' Union [2019] FWCA 4371 [4].

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