Amity Health Limited T/A Amity Health

[2020] FWC 3939

[2020] FWC 3939

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 10 Sch. 3—Variation of transitional instrument - agreement

Amity Health Limited T/A Amity Health
(AG2020/1858)

Health and welfare services
DEPUTY PRESIDENT BEAUMONT	PERTH, 24 AUGUST 2020

Application for variation of the Great Southern GP Network LTD Employee Collective Agreement 2007.

[1] This is an application by Amity Health Limited (Amity) under item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act) for an order varying the Great Southern GP Network Ltd Employee Collective Agreement 2007 1 (the Agreement) to remove an ambiguity. The Agreement covers the Great Southern GP Network Ltd (the GS GP Network) and its employees.

[2] The variations sought, include a variation of:

a) the title of the Agreement so that it reads ‘Amity Health Ltd Employee Collective Agreement 2007’ instead of the Great Southern GP Network Ltd Employee Collective Agreement 2007 (cl 1); and

b) cl 3 of the Agreement which specifies the parties bound, it reads ‘[T]his Agreement shall be binding on the Great Southern GP Network Ltd (hereinafter referred to as GSGPN Ltd, “the Network” or “the employer”) and the employees employed on a salaried basis by the employ’, Amity wants it to read ‘binding on Amity Health Limited or the employer’.

[3] Item 10 of Schedule 3 to the Transitional Act provides:

10 All kinds of transitional instrument: variation to remove ambiguities etc.

(1) On application by a person covered by a transitional instrument, FWC may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; or

(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.

Background

[4] By way of background, Ms Robin Surridge, Chief Executive Officer, provided an explanation why the application had been brought. That explanation is set out below.

a) In November 2009, the GS GP Network registered the business name Amity with the trading name of Amity Health.

b) This was an intermediate step, as service provision and direction of the company was in transition.

c) On 2 December 2013, the company officially changed names (same ACN and ABN) from GS GP Network to Amity. The identity of the company operationally migrated to Amity.

d) In 2014, a specialist legal company was retained to review the Agreement for currency and appropriateness against the provisions of the Fair Work Act 2009 (Cth) (Act).

e) A further Board review of the Agreement for currency was conducted at the end of 2019; Amity was confident the provisions of the Agreement were valid and appropriately in line with, or above, the criteria levels included in the current Act.

f) Amity has been increasing both the area of service provision and staff. New employees joining the organisation now, some seven years on from the effective use of the company name GS GP Network, find the dichotomy confusing and puzzling.

g) The Amity Board no longer references any activities of the organisation under the ‘GS GP Network’ title.

[5] Appended to the application was a certificate issued by the Australian Securities and Investments Commission, which stated:

Certificate of Registration on Change of Name

This is to certify that

Great Southern GP Network Ltd

Australian Company Number 062 628 924

did on the second day of  December 2013 change its name to

Amity Health Limited

Australian Company Number 062 628 924

Principles

[6] In Association of Professional Engineers, Scientists and Managers, Australia v Oceanic Coal Australia Pty Ltd, 2 the Vice President proceeded on the basis that the authorities governing the exercise of the discretion to remove ambiguity or uncertainty conferred by s 176MD of the Workplace Relations Act 1996 (Cth), and s 170MK of the Industrial Relations Act 1998 before it, were equally applicable to the exercise of the discretion in item 10 of Schedule 3 to the TPCA Act. The Vice President therefore listed the applicable principles as follows (citations omitted):

a) The discretion to vary an agreement to remove ambiguity or uncertainty is not enlivened unless and until the tribunal identifies ambiguity or uncertainty. 

b) Once 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. 

c) In exercising that discretion the tribunal must have regard to the mutual intention of the parties at the time the agreement was made as a matter to which significant weight should be accorded. In particular:

i. The tribunal should have read to the mutual intention of the parties objectively ascertained. That is, the tribunal should have regard to the construction of the relevant clause that is yielded by an application of the conventional principles of construction of industrial agreements. This will usually, if not invariably, involve the tribunal in considering the objective matrix of facts within which the agreement was made. 

ii. The tribunal should also have regard to whether there was a mutual subjective intention, that is, whether the subjective intention of the parties coincided. Such an intention may be discerned from the circumstances at the time and the subsequent conduct of the parties. 

d) Regard should be had to the objects of the Act in which the power to vary is found.

e) While the discretion should be exercised having regard to all the circumstances of the case, other matters to which regard may be had include representations as to the effect of the agreement made to employees by the employer, directly or through an agent (which may include a union). 3 

Consideration

 [7] As noted, before the Commission exercises its discretion to vary an agreement it must first identify an ambiguity or uncertainty. 4 It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

[8] The relevant question, therefore, is whether ‘on a proper construction of the relevant provision of an agreement, the wording of the provision is susceptible to more than one meaning’. 5

[9] I am satisfied that clauses 1 and 3 are affected by ambiguity. The employer covered by Agreement has undergone a name change. The ACN is now associated with Amity rather than GS GP Network, yet the Agreement does not mirror this. The Agreement refers to GS GP Network. A search of the ACN reflects the name change and that same number is referred to within the Agreement, however, the Agreement continues to refer to an employer name which is now obsolete.

[10] It would be reasonable for an employee to have a level of consternation and confusion that the industrial instrument which applies to her or him, does not reflect the name of the employer with whom a contract has been signed.

[11] In all of the circumstances, I am persuaded that the Commission should exercise its discretion to vary clauses 1 and 3 to remove the ambiguity that is present in those clauses, in accordance with the position advanced by Amity.

[12] It follows that cl 1 of the Agreement will be varied by deleting the words ‘Great Southern GP Network Ltd Employee Collective Agreement 2007’ and replacing them with ‘Amity Health Ltd Employee Collective Agreement 2007’.

[13] Further, cl 3 of the Agreement will be varied by deleting:

[T]his Agreement shall be binding on the Great Southern GP Network Ltd (hereinafter referred to as GSGPN Ltd, “the Network” or “the employer”) and the employees employed on a salaried basis by the employer.

and replacing it with:

[T]his Agreement shall be binding on Amity Health Limited (hereinafter referred to as the “Network” or “the employer”) and the employees employed on a salaried basis by the employer.

[14] The aforementioned variation of the Agreement operates from the date of issuance of the Order, 6 which accompanies this decision.

DEPUTY PRESIDENT

On the papers.

Printed by authority of the Commonwealth Government Printer

<AC306286  PR721322>

 1 AC306286.

 2   [2011] FWA 3146.

 3 Ibid [9].

 4   Re Victorian Public Transport Enterprise Agreement 1994, Print M2454, 7 June 1995 Ross VP, Polites SDP and Grimshaw C, [3]; Re CFMEU Appeal, Print R2431, 25 February 1999 Harrison SDP, Drake DP and Larkin C, [8].

 5   Re Tenix Defence Systems Pty Ltd Certified Agreement, PR917548, 9 May 2000 Ross VP, O’Callaghan SDP and Foggo C,[49].

 6   PR721724.