Advantaged Care Pty Ltd

[2021] FWCA 3606

[2021] FWCA 3606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Advantaged Care Pty Ltd
(AG2021/4490)

ADVANTAGED CARE NON-CLINICAL STAFF ENTERPRISE AGREEMENT 2020-2023

Aged care industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 23 JUNE 2021

Application for variation of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023.

[1] An application has been made by Advantaged Care Pty Ltd (Applicant) pursuant to s.217 of the Fair Work Act 2009 (Act) to vary the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020-2023 (Agreement) to remove ambiguity and uncertainty.

[2] The Health Services Union (HSU) is covered by the Agreement.

[3] The Applicant filed and served an outline of submissions, draft order, witness statement of Mr Michael Roucek (and a bundle of documents exhibited to that statement) on 28 May 2021. Pursuant to the Applicant’s outline of submissions, the Applicant contends (in short) that:

(a) clause 17(c) of the Agreement is ambiguous and uncertain, for the grounds and reasons set out at paragraphs 13 to 16 of its outline of submissions;

(b) clause 17(d) of the Agreement is ambiguous and uncertain, for the grounds and reasons set out at paragraphs 19 to 28 of its outline of submissions; and

(c) the Fair Work Commission (Commission) should exercise its discretion and vary the Agreement to remove the ambiguity or uncertainty with effect from the date the Agreement commenced operating.

[4] The HSU filed and served its outline of submissions on 16 June 2021, and agreed (in summary) that:

(a) clauses 17(c) and 17(d) of the Agreement are ambiguous or uncertain (paragraphs 7 to 10 of the HSU’s outline of submissions), and

(b) clauses 17(c) and 17(d) of the Agreement should be varied to remove such ambiguity or uncertainty (paragraphs 24 and 25 of the HSU’s outline of submissions).

[5] On 21 June 2021, the Respondent confirmed with the Commission that the parties had conferred and reached agreement on the appropriate form of a draft Order to vary clauses 17(c) and 17(d) of the Agreement. The Respondent enclosed a draft Order that represented an agreement between the parties on the variation that would be necessary to remove the ambiguity or uncertainty as identified in its application.

[6] The parties agree to delete clause 17(c) of the Agreement and instead insert:

“(c) In addition to the provisions of subclause (a) and (b) above, for all work completed Monday to Friday, a casual Employee shall receive a 25 percent casual loading calculated against the Base Rate of Pay.”

[7] In addition, the parties agree to delete clause 17(d) of the Agreement and insert instead the following:

“(d) (i) For all ordinary hours completed on weekends, that is a Saturday or Sunday, in addition to the Base Rate of Pay, all Employees shall be paid as follows:

All hours completed on a Saturday – 50% penalty rate

All hours completed on a Sunday – 75% penalty rate

(ii) For all ordinary hours completed on weekends, that is a Saturday or Sunday, in addition to the Base Rate of Pay and from the first full pay period on or after 1 July 2020, all casual Employees shall (in lieu of (i) of this subclause above) be paid as follows:

All hours completed on a Saturday – 75% penalty rate

All hours completed on a Sunday – 100% penalty rate

(iii) The penalty rates for Saturdays and Sundays are paid to Employees in substitution of any casual loading if applicable and in substitution of any shift penalties referred to in subclause (b) above.”

[8] Section 217 of the Act provides the following:

“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;

(b) an employee 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.”

[9] The Applicant is the employer covered by the Agreement and therefore has standing to make the application (s.217(1)(a)).

[10] The discretion to vary an agreement may only be exercised if the Commission is satisfied that there is ambiguity or uncertainty in the relevant provision/s of the enterprise agreement. For the purposes of this decision, I adopt and apply the principles stated by Deputy President Gostencnik in Bradnam's Windows and Doors Pty Ltd 1:

“[11] As seems clear from the text of s.217, the discretion to vary an agreement may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the agreement. The principles that are to be applied in considering an application under s.217 may be shortly stated:

● 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;

● 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;

● The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention;

● However, the Commission must make a positive 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;

● 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 judgment as to whether the wording of a provision is susceptible to more than one meaning; and

● Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.” 2

[11] I am satisfied that clauses 17(c) and 17(d) of the Agreement are both uncertain and ambiguous. So as to remove such uncertainty and ambiguity, I will vary the Agreement as proposed by the parties. The application is granted, and a variation Order is issued separately.

[12] The variation Order will operate from the date the Agreement commenced operation, being 6 March 2020. 3

DEPUTY PRESIDENT

 1   [2019] FWCA 979.

 2 Ibid, at [11].

 3   [2020] FWCA 1108, 28 February 2020, (AE507275; PR717133). Note: Colonial Mutual Life v FSU (2004) 133 IR 149 at 171; Simon Engineering v AMWU, PR921966; Ambrose v Skilled Communications, PR904872.

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