ACT Government

[2014] FWCA 4982

[2014] FWCA 4982

The attached document replaces the document previously issued with the above code on 25 July 2014.

There were two administrative errors and an error in the paragraph numbering that have now been corrected.

Rachael Shaw

Associate to Commissioner Deegan.

Dated 29 July 2014

[2014] FWCA 4982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

ACT Government
(AG2014/6673)

ACT PUBLIC SERVICE CULTURAL FACILITIES CORPORATION ENTERPRISE AGREEMENT 2013-2017

State and Territory government administration
COMMISSIONER DEEGAN	CANBERRA, 25 JULY 2014

Application for variation of the ACT Public Service Cultural Facilities Corporation 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 Service Cultural Facilities Corporation 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 vary the Agreement to amend the coverage clause to provide that the Agreement applies only to employees of the Cultural Facilities Corporation.

[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 that the current coverage clause of the Agreement is ambiguous as it could be considered to apply to the ACT public sector as a whole and not only to the Cultural Facilities Corporation as is the intention. A simple amendment was proposed to provide certainty in the Agreement coverage.

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 current coverage clause of the Agreement I find that the agreement is uncertain in its coverage. I am satisfied that I should make the amendment sought so as to remove the uncertainty.

[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. Coverage Clause

Clause A3.1(b) of the agreement is varied by adding after “persons” the words “employed by the Cultural Facilities Corporation and”.

 1   Fosterville Gold Mine Pty Ltd [2011] FWA 316.

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