ACT Government
[2014] FWCA 4983
•25 JULY 2014
[2014] FWCA 4983
The attached document replaces the document previously issued with the above code on 25 July 2014.
There were administrative errors that have now been corrected.
Rachael Shaw
Associate to Commissioner Deegan.
Dated 29 July 2014
| [2014] FWCA 4983 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
ACT Government
(AG2014/6674)
ACT PUBLIC SECTOR OFFICE OF THE LEGISLATIVE ASSEMBLY ENTERPRISE AGREEMENT 2013-2017
State and Territory government administration | |
COMMISSIONER DEEGAN | CANBERRA, 25 JULY 2014 |
Application for variation of the ACT Public Sector Office of the Legislative Assembly Enterprise Agreement 2013-2017.
[1] This is an application pursuant to s.217 of the Fair Work Act 2009 (the Act) lodged by the ACT Government to vary the ACT Public Sector Office of the Legislative Assembly Enterprise Agreement 2013-2017 (the Agreement) to remove ambiguity and uncertainty. The application is supported by the CPSU, the Community and Public Sector Union and is not opposed by the Media, Entertainment and Arts Alliance.
[2] The employer seeks to have the agreement varied to address a number of anomalies and areas of potential misunderstanding in the Agreement. The employer seeks to vary the Agreement:
- To insert rates of pay for Information Technology Officers
- To delete pay rates for Administrative Service Officer Class 5 and insert the pay rates in annexure A
[3] The proposed changes are set out at Annexure A to this decision.
[4] At the hearing of the matter on 25 July 2014 Ms H Robinson, for the employer, made submissions in support of the application.
[5] It was submitted that the Agreement was both uncertain and ambiguous in its current terms in its application to Information Technology Officers. It also included an incorrect rate of pay that caused additional uncertainty for employees covered by it. It was put that the two amendments which were proposed to would restore certainty for affected employees.
Consideration
[6] Section 217 of the Act provides:
217 Variation of an enterprise agreement to remove an ambiguity or uncertainty
(1) FWA 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 FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.
[7] The application is made by the employer covered by the Agreement, in accordance with s.217(1)(a) of the Act.
[8] The principles to be applied by the Fair Work Commission (the Commission) when determining s.217 variation applications were usefully summarised in the decision of Lewin C in Fosterville Gold Mine Pty Ltd (Fosterville) 1 as follows:
‘a. The Tribunal should approach the matter by way of two stages. Firstly, as a jurisdictional pre-requisite, identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty has been identified, FWA has discretion whether or not to vary the agreement. Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (Full Bench, 9 May 2002, PR917548) at [28], [32] & [35].
b. The first part of the process (ie identifying ambiguity or uncertainty) involves an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context. See Re Tenix at [29].
c. The Tribunal will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and arguable case is made out for more than one contention. See Re Tenix at [31].
d. However, the Tribunal must make a positive finding that the agreement is uncertain or ambiguous. Being satisfied of ambiguity or uncertainty on a prima facie basis is not sufficient. See CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57].
e. It is not sufficient that there are rival contentions as to the proper construction of the terms of the agreement. Such contentions may be self serving. The Tribunal’s task is to mark an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. See Re Civil Construction Corporation Enterprise Agreement (Ross VP, 13 October 2002, PR939346); SJ Higgins v CFMEU (Williams SDP, 2 May 2001, PR903843); RE CFMEU Appeal (Full Bench, 25 February 1999, Print R2431).
f. In terms of the second stage of the process, once an ambiguity or uncertainty has been identified, in exercising the discretion of the Tribunal whether or not to vary the agreement, the Tribunal is to have regard to the mutual intention of the parties at the time the agreement was made. See Re Tenix at [32].’
[9] Having considered the terms of the Agreement and the submissions put to me as to the intention of the parties in making the Agreement I find that uncertainty exists. I am satisfied that I should exercise my discretion to make the variation sought.
[10] The variation is approved and will take effect from 26 May 2014. A consolidated version of the Agreement is attached.
Appearances:
Ms H Robinson, of the ACT Government Solicitors, with Mr P Gillin, for the Employer
Mr R Johnson for CPSU
Hearing details:
2014.
Canberra:
25 July.
Annexure A
1 Fosterville Gold Mine Pty Ltd [2011] FWA 316.
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