Aged Care Services Australia Group Pty Ltd
[2017] FWCA 1201
•2 MARCH 2017
| [2017] FWCA 1201 [Note: This decision has been quashed - refer to Full Bench decision dated 25 January 2017 [[2017] FWCFB 2806] |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.217—Enterprise agreement
Aged Care Services Australia Group Pty Ltd
(AG2017/165)
Aged Care Services Australia Group Pty Ltd - Nurses and Aged Care Employees Enterprise Agreement 2014
| Tasmania | |
| Deputy President Wells | HOBART, 2 MARCH 2017 |
Application for variation of the Aged Care Services Australia Group Pty Ltd-Nurses and Aged Care Employees Enterprise Agreement 2014.
On 20 January 2017, Aged Care Services Australia Group Pty Ltd (ACSAG) made application pursuant to s.217 of the Fair Work Act 2009 (the Act) to vary clause 5 ‘Coverage’ of the Aged Care Services Australia Group Pty Ltd - Nurses and Aged Care Employees Enterprise Agreement 2014[1] (the Agreement) alleging that clause is ambiguous. The parties bound by the Agreement, as approved on 28 October 2014[2] are ACSAG, the Australian Nursing and Midwifery Federation of Australia (ANMF), the Health Services Union of Australia (HSU) and the employees of ACSAG.
ACSAG contends the current wording of clause 5 is ambiguous and that the clause should be varied to clearly define the employees covered as being employees of ACSAG “employed in Tasmania”.
On 1 February 2017 the ANMF provided written submissions[3] in relation to the application. Likewise, on 7 February 2017 the HSU provided written submissions.[4] Both the ANMF and the HSU oppose the application made by ACSAG, submitting that the Agreement contains no ambiguity or uncertainty.
Clause 5 of the Agreement states:
“5 Coverage
This Agreement shall cover:
(a) Aged Care Services Australia Group Pty Ltd; and
(b) Nurses and Aged Care employees employed by Aged Care Services Australia Group Pty Ltd as classified in Schedule 3 of this Agreement; and
(c) subject to the requirements of the Fair Work Act 2009, the Australian Nursing and Midwifery Federation Tasmanian Branch (‘ANMF’), and the Health Service[s] Union, Tasmania No. 1 (‘HACSU’).”
Section 217 of the Act provides:
“(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.”
Following the submissions of the ANMF and the HSU, ACSAG provided its written submissions[5] on 10 February 2017. The Commission wrote to the parties on 21 February 2017 inviting any further written submissions to be made by Friday 24 February 2017. Both the ANMF and the HSU indicated they did not wish to make further submissions. The Commission offered the parties an opportunity to be heard in person, however the parties did not take up that offer. Accordingly I have determined the matter ‘on the papers’.
The issue to be determined
In order for the jurisdiction of the Commission to be enlivened to vary an agreement in accordance with s.217 of the Act, it must be determined that an ambiguity or uncertainty exists.
If such an ambiguity or uncertainty is found, should the Commission exercise its discretion to vary the Agreement.
The submissions
It is common ground between the parties that the presence of an ambiguity or uncertainty must be found to enliven the jurisdiction of the Commission in exercising the power to vary an agreement.
Both the ANMF and the HSU argue that the coverage of the Agreement, set out in clause 5, is plain and is not susceptible to more than one meaning. The ANMF submits that the employer’s intended coverage of the Agreement is not relevant to whether ambiguity exists and that the Agreement merely being silent on geographical coverage does not establish an ambiguity.
Further the ANMF contends that the Commission has no power to correct mistakes or errors in Agreement (see Australian Nursing Federation re Healthe Care (Vic Hospitals) and ANF and HSU Nurses Collective Agreement 2008 [2011] FWA 2430 (21 April 2011)).
The HSU submits that previous decisions[6] of this Commission focus on whether the words of a provision in an enterprise agreement themselves are certain and unambiguous.
ACSAG’s submissions provide that when sub clause (b) of clause 5 is considered in context with other clauses and Schedule 3 of the Agreement, it is clear that an ambiguity arises. This is said to be because the Agreement may cover only ACSAG employees in Tasmania in the relevant classifications, whilst the sub clause itself does not specifically identify geographical coverage.
ACSAG contends that as it employs people throughout Australia, sub-clause (b) of clause 5 of the Agreement should include the words “employed in Tasmania” at the end of that sentence. It submits that Schedule 1 (through clause 4 ‘Scope etc’of the Agreement) identifies the scope of application to employees classified in that Schedule; and Schedule 3, through its identification of qualifications under the Health Practitioner Regulation National Law (Tasmania) Act 2010; clearly intends to cover employees relevantly classified and who are employed in Tasmania only.
In support of this argument ACSAG also relies on two clauses within the Agreement that deal with long service leave and public holidays to which I refer later. These clauses clearly identify an entitlement to leave and public holidays, in accordance with Tasmanian statute.
Further, ACSAG states that when applying the principles of statutory interpretation, once an ambiguity is found to exist, evidence of surrounding circumstances may be considered. ACSAG seeks to rely on the pre-approval steps undertaken with the Agreement which included the filing of a Form F16 and F17 by ACSAG and the filing of Form F18s by the Tasmanian branches of the ANMF and the HSU. ACSAG advances that the evidence surrounding the approval process clearly shows that the application of the Agreement to Tasmanian employees of ACSAG was a matter in common contemplation and was a common intention of the parties.
ACSAG submits that whilst the AMNF and the HSU argue that clause 5 of the Agreement is not susceptible to more than one meaning, they have limited their submissions to the wording of clause 5 in isolation and not in the broader context of the Agreement as a whole.
Consideration
In determining this matter I have had regard to previous decisions of this Tribunal, including its predecessors. In Tenix Defence Systems Pty Limited Certified Agreement 2001-2004[7] (Tenix) the Full Bench of the Australian Industrial Relations Commission dealt with provisions under s.170MD(6) of the Workplace Relations Act 1996, those being the provisions which are now contained within s.217 of the Act. In Tenix the Full Bench dealt with the proper construction and the application of the section as follows:
“[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.
[29] The first part of the process – identifying an ambiguity or uncertainty – involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox – CFMEU (CSR Timber) Enterprise Agreement 1997:
‘The identification of whether or not a provision in an instrument can be said to contain an ‘ambiguity’ requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the ‘parent’ award with which a complimentary provision is to be read.’
[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect. [my emphasis]
[31] 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.
[32] Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.
[33] We agree with Tenix that the first step in dealing with a s.170MD(6)(a) application – the identification of an ambiguity or uncertainty – requires the determination of a ‘jurisdictional fact’. In Corporation of the City of Enfield v Developmental Assessment Commission the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term ‘jurisdictional fact’ in these terms:
‘The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.’
[34] Similarly in re: CFEMU – Termination of Bargaining Periods, Lee and Madgwick JJ said:
‘…the question presents as one of whether the Commission may have erred as to a ‘jurisdictional fact’, that is, the existence or non-existence of a state of affairs which was a statutory precondition to the Commission acting…’
[35] In the context of s.170MD(6)(a) the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re: CFMEU Appeal which described the existence of an ambiguity or uncertainty as ‘a necessary statutory prerequisite to any variation being made.’” [references omitted]
In Re Linfox – CFMEU (CSR Timber) Enterprise Agreement 1997[8] Munro J relevantly held at paragraph [29] that:
“In other words, the power must be exercised to remove any ambiguity. It may not appropriately be used to re-write an agreement to install something that was not inherent to the agreement when it was made”.
Also relevant to my determination are the findings of the Full Bench per Ross VP, Polites SDP and Grimshaw C in The Public Transport Corporation of Victoria and Australian Rail, Tram and Bus Industry Union and others Print M2454, 7 June 1995, as follows:
“In our view the approach adopted by his Honour Gray J. in the PKIU case is a sensible one and should be applied by the Commission in dealing with applications to vary agreements for the purpose of removing ambiguity or uncertainty. Accordingly the Commission would generally err on the side of finding an ambiguity or uncertainty in circumstances where there are rival contentions advanced before it and an arguable case can be made out for more than one contention.
Once an ambiguity or uncertainty has been identified it is then a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the factors to which the Commission should have regard would include the intention of the parties at the time the Agreement was made. Such an intention may be discerned from the circumstances at the time and the subsequent conduct of the parties.”
Relevantly, the following clauses form part of the Agreement:
“27. PUBLIC HOLIDAYS
Entitlement To Paid Public Holidays
(1) Subject to the provisions of this Agreement employees, other than casual employees, are entitled to paid public holidays for Christmas Day, Boxing Day, New Year’s Day, Australia Day, Hobart Regatta Day (South of Oatlands), Eight Hours Day, Good Friday, Easter Monday, Anzac Day, Queen’s Birthday, Show Day, and the first Monday in November where Hobart Regatta Day is not observed, or such other day(s) which may be observed in the locality in lieu of or made additional to any of the aforementioned holidays, as per the Tasmanian Statutory Holidays Act 2000 as amended. [my emphasis]
(2) …
38. LONG SERVICE LEAVE
(1) Long Service Leave is a matter provided for in the NES (Division 9 – Long Service Leave). Where there is an inconsistency between this Clause and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
(2) The provisions of the Long Service Leave Act 1976 (as amended) (“the Act”) will apply to employees covered by this agreement. [my emphasis]
(3) …”
I acknowledge that clauses 27 and 38 of the Agreement reproduced above clearly indicate the application of Tasmanian statute, that is, the Long Service Leave Act (Tas) 1976 and the Statutory Holidays Act 2000 which provides for both regional and Statewide public holidays.
Having applied the principles espoused in these authorities I am satisfied that, on an objective assessment, and considering the context of clause 5 and the combination of Schedule 3, and clauses 27 and 38, the employees to be covered by the Agreement is susceptible to more than one meaning and is therefore ambiguous. It is not necessary to restate here the considerable submissions made on this point.
It is clear from the documentation provided by ACSAG with its submissions that the voting and approval process undertaken with the Agreement in 2014 involved only ACSAG’s Tasmanian employees, and that neither the ANMF nor the HSU raised any concerns involving the coverage of the Agreement, or the voting process for its approval.
ASCAG have established, on an objective assessment, an arguable case for the contention that coverage of the Agreement can be read to include only those of its employees classified under Schedule 3of the Agreement and employed within Tasmania.
I am also satisfied that on reading clause 5, in isolation of the other provisions of the Agreement, that a conclusion could be drawn that the Agreement covers ACSAG employees classified under Schedule 3 of the Agreement, regardless of where they work.
As I have determined that ambiguity and/or uncertainty exists as to clause 5(b) of the Agreement, I am of the view it is appropriate for the Commission to exercise its discretion under s.217 to remove that ambiguity or uncertainty, to provide clarity to all parties covered by the Agreement.
Conclusion
In conclusion, I am satisfied that the intention of the parties was that the Agreement would cover employees of ACSAG as described in Schedule 3 of the Agreement and that are employed in Tasmania. It is appropriate to vary the Agreement by inserting the words “employed in Tasmania” at the end of sub clause (b) of clause 5.
Accordingly, the application is granted and the variation, as sought, will operate from today.
Clause 5 of the Aged Care Services Australia Group Pty Ltd – Nurses and Aged Care Employees Enterprise Agreement 2014 will now provide as follows:
“5 Coverage
This Agreement shall cover:
(a) Aged Care Services Australia Group Pty Ltd; and
(b) Nurses and Aged Care employees employed by Aged Care Services Australia Group Pty Ltd as classified in Schedule 3 of this Agreement employed in Tasmania; and
(c) subject to the requirements of the Fair Work Act 2009, the Australian Nursing and Midwifery Federation Tasmanian Branch (‘ANMF’), and the Health Service[s] Union, Tasmania No. 1 (‘HACSU’).
DEPUTY PRESIDENT
[1] AE410864
[2] [2014] FWCA 7660
[3] Exhibit ANMF1
[4] Exhibit HSU1
[5] Exhibit Applicant1
[6] Core Toughened Pty Ltd v CFMEU [2015] FWC 7131 at [42] and Monash Health [2014] FWCA 1924 at [54] to [57]
[7] PR917548
[8] Print Q2603
Printed by authority of the Commonwealth Government Printer
<Price code C, AE410864 PR590634>
1