Application by Barlow & Ghani

[2013] FWC 3428

[2013] FWC 3428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Application by Barlow & Ghani
(AG2013/800)

VICE PRESIDENT WATSON SYDNEY, 29 MAY 2013

Application to vary the Virgin Blue Cabin Crew Agreement 2009 - whether application made under correct provision - whether Fair Work Act 2009 - ss. 217, 217A.

Introduction

[1] This decision, edited from a decision on transcript on 23 May 2013, concerns an application under s.217 of the Fair Work Act 2009 (the Act) by Ms Alexandra Barlow and Mr Daniel Ghani to vary the Virgin Blue Cabin Crew Agreement 2009 (the Agreement). The application was made to vary clause 2.7, which deals with performance management. The application was premised on the argument that, by virtue of its conduct allegedly in breach of the Agreement, Virgin Australia Ptd Ltd (Virgin) was proposing a variation to the Agreement.

[2] The matter was originally listed for mention and directions hearing, with the applicants being represented by Ms C Summers and Virgin represented by Mr J Wells of Allens. Following discussions between the parties, directions were issued and the matter was set down for hearing in Brisbane in early June. Ms Summers filed material on behalf of Ms Barlow and Mr Ghani in compliance with the directions.

[3] Upon consideration of the materials provided by Ms Summers, Virgin wrote to my chambers seeking a further directions hearing, as it asserted that the material provided by Ms Summers did not meet the directions and that the application appeared to have been made under the incorrect section of the Act. The matter was then listed for further directions on 23 May 2013.

The proceedings

[4] The application was originally made under s.217 of the Act. Section 217 provides:

“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.”

[5] At the hearing on 23 May, Ms Summers sought leave to amend the application to invoke s.217A, not s.217. Section 217A provides:

“FWC may deal with certain disputes about variations

(1)  This section applies if a variation of an enterprise agreement is proposed.

(2)  An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to the FWC for the FWC to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.

(3)  The FWC must not arbitrate (however described) the dispute.”

[6] In Ms Summers’s submission, the conduct of Virgin and the manner in which it was applying Clause 2.7 of the agreement amounted to a proposed variation of that clause. Ms Summers indicated that her clients were not proposing any variation to the Agreement.

[7] Virgin submitted that it was not proposing a variation of the Agreement, so s.217A(1) did not apply. Virgin sought to have the application dismissed.

Conclusions

[8] Having heard from the parties I consider that the nature of the dispute involves an allegation of breach or departure from the enterprise agreement. I express no view as to the validity of that allegation, and I have not considered those matters in any detail. However it does appear to me that this circumstance is of quite a different nature to the circumstances to which s.217A of the Act are directed.

[9] That section is directed to a party seeking an actual variation to the words of an enterprise agreement, and when there is such a proposal by a party, then a facility for this Commission to assist the parties in resolving the dispute about that particular variation. It appears clear to me that there is no such variation proposed and that the application under s.217A is misconceived.

[10] I consider therefore that the appropriate course is to dismiss the application. There may be other proceedings of one sort or another that may be available to agitate the issues that are involved and the material that has been filed may be of use in some other context. I express no view about that, but on the submissions made to me I will dismiss this application.

VICE PRESIDENT WATSON

Appearances:

Ms C Summers for Ms Alexandra Barlow and Mr Daniel Ghani

Mr J Wells for Virgin Australia Pty Ltd

Hearing details:

2013

Sydney

May

23

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