ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – dispute regarding proper application of clause 5.2 of Bytecraft Systems Employee Enterprise Agreement 2012 – Workshop & Logistics (Agreement) – dispute not resolved at conciliation – dispute within scope of dispute settlement procedure – appropriate steps of procedure followed – decision dealt with two preliminary issues: whether clause 5.2 requires employer to supply to each employee a mobile phone or Pocket PC, and if so what is a Pocket PC – clause 5.2 states ‘mobile phone or pocket PC will be supplied’ – employer submitted clause 5.2 about tools of trade as opposed to employee benefit – Commission found submission not sustainable – clause preamble states tools of trade provided in clause are ‘for the benefit of employees’ – whether supply of property referred to in clause 5 is mandatory or discretionary depends upon clause wording, not on some inherent property of a tool of trade – employer argued there are some circumstances when word ‘may’ has mandatory meaning and some circumstances when ‘will’ not absolutely mandatory [Catholic Regional College Sydenham] – Commission satisfied that generally the word ‘will’ is mandatory – could only be in particular exceptional context that this not the case – no basis to find clause ambiguous – would need to be something in context of legislation, placement of clause in Agreement or surrounding language of Agreement that suggested ‘will’ was not mandatory – wording of clause 5.2 clear and plain – where framers sought to make entitlement discretionary, the word ‘may’ used in Agreement – definition of Pocket PC considered – submissions filed by unions provided number of sources for definition of Pocket PC – necessary to consider what an objective person would have understood by phrase in 2012 – Commission satisfied that considered in context a Pocket PC a hardware specification from Microsoft for a small, handheld computing device that uses the Microsoft Windows Mobile operating system – parties to meet to attempt to reach resolution of remaining issues in dispute – further conference listed. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Bytecraft Systems P/L
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