Application by Presbyterian Ladies’ College

[2021] FWCA 1389

[2021] FWCA 1389

FAIR WORK COMMISSION

DECISION

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

Application by Presbyterian Ladies’ College
(AG2020/3751)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 16 MARCH 2021

Application for variation of the Presbyterian Ladies' College Teachers Agreement 2019 - 2021.

[1] On 7 December 2020 Presbyterian Ladies’ College (Applicant) made an application pursuant to s.217 of the Fair Work Act 2009 (FW Act) to vary the Presbyterian Ladies’ College Teachers Agreement 2019-2021 (the Agreement)to remove ambiguity or uncertainty. In particular the Applicant seeks to vary clause 20.1(d)(i).

[2] Clause 20 of the Agreement deals with Allowances and Clause 20.1 with Responsibility allowance. Paragraph (a) sets out eligibility for the allowance, paragraph (b) – Notification, and paragraph (c) – Level of responsibility.

[3] Clause 20.1(d) deals with the specific amounts of allowances and currently reads:

(d) Amount

(i) The following range of allowances per annum apply from 1 February of each year:

Level	2019	2020	2021
A - minimum	$14,788	$15,232	$15,689
B – from	$8,532	$8,788	$9,051
B – to	$14,788	$15,232	$15,689
C – from	$4,779	$4,922	$5,070
C – to	$11,376	$11,717	$12,068
D	$4,778	$4,921	$5,069

(ii) Where the position of responsibility is shared, the payments may also be shared.

(iii) An Employee who holds a position of responsibility will be paid not less than the amount indicated in cl.20.1(d)(i).

(iv) The allowances will be increased annually on 1 February at the same annual percentage increase applied to salaries, as set out in Schedule A.1 of the Agreement.

(v) The financial allowance ranges set out in cl.20.1(d)(i) will be adjusted annually by the annual percentage increase applied to salaries, as set out in Schedule A.1 of the Agreement.

THE VARIATION SOUGHT

[4] The application is concerned with the table in clause 20.1(d)(i). The application seeks to vary the table, with effect from 19 April 2019 – being the statutory commencement date of the Agreement.

[5] The Applicant seeks to vary the Agreement by amending the last row in the table to add after the letter “D” “ – up to” so that it now reads:

D – up to $4,778 $4,921 $5,069

DIRECTIONS, SUBMISSIONS AND EVIDECNE

[6] The application as filed indicated that the Independent Education Union of Australia Victoria Tasmania (IEU) did not oppose the application.

[7] Following receipt of the applications the matter was listed for mention. Following the mention directions were issued with the consent of the Applicant and the IEU. Those directions:

1. Required the Applicant to serve the Directions, its submissions and any material on which it sought to rely on all employees of the Applicant who are eligible for the Level D allowance;
2. Required the Applicant to serve it submissions and any material on which it sought to rely on the IEU;
3. Invited any employees of the Applicant eligible for the Level D allowance, and the IEU, to file any submissions in relation to the application.

[8] The Applicant filed submissions and material on which it sought to rely as required by the Directions.

[9] No submissions were received from any eligible employees or the IEU and no objection to the application or variation advanced by the Applicant has been notified to the Commission. In this respect I note that there is no contradictor in proceedings.

[10] The Applicant, in addition to submissions, filed an affidavit of Mr Christopher Blair, Business Manager for the Applicant. Mr Blair attested that he was responsible for drafting the Agreement as negotiations proceeded. He said that it was agreed in negotiations to include in the responsibility allowance clause the amount of the allowance for each year. To do this he created a table (what is now clause 20.1(d)(i)). In so doing he said that he made an error in not transposing the words “up to” in relation to Level D as they appeared in the predecessor agreement. He said the transposition error is apparent as drafts of the proposed agreement circulated during negotiations contained track changes of all agreed changes to the predecessor agreement and this change was never tracked.

[11] Mr Blair further said that, since the making of the Agreement, the Applicant has continued to pay the allowance for Level D within a range as it had under the predecessor agreement. This has not been disputed by the IEU or its school delegate or by employees although one query was raised as to whether it should be paid as a set amount by an employee in October 2020.

LEGISALTIVE PROVISIONS

[12] Section 217 of the FW Act states:

217 Variation of an enterprise agreement to remove 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.

DEALING WITH AMBIGUITY OR UNCERTAINTY

[13] A decision to vary an agreement to remove ambiguity or uncertainty is a discretionary decision. Prior to considering if an agreement should be so varied it is necessary to identify the ambiguity or uncertainty.

[14] Such an identification involves an objective assessment of the words used – construed having regard to their context. Context is not confined to the specific words used but may involve a consideration of a number of clauses within an agreement.

[15] In deciding if ambiguity or uncertainty exist “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.” 1 However, it is not enough that rival contentions can be found or that the clause is disputed. There must be an objective judgement as to whether the wording is susceptible to more than one meaning.2

[16] Having determined that ambiguity or uncertainty exists it is a matter of discretion as to whether the agreement should be varied. In exercising such discretion the Commission should have regard to the mutual intention of the parties at the time the agreement was made. 3

[17] Whilst a number of these decisions were made pursuant to s.170MD(6) of the Workplace Relations Act 1996, the language used in s.217 of the FW Act reflects that used in s.170MD(6) such that the approach outlined in early decision remains apposite to the application before the Commission.

[18] I have relied on the approach outlined above in determining the application before me.

IS THE PROVISION AMBIGUOUS OR UNCERTAIN?

[19] The Applicant submits that the ambiguity arises because of a “genuine transposition error” in the clause in the Agreement. That error, the Applicant says, occurred when the equivalent clause in the predecessor agreement was reformatted into the table as appears in the Agreement and set out above.

[20] In the predecessor agreement the clause read:

(i) The following allowances apply from 1 February 2015:

7.	Level	Range (per annum)
A	$13,000+
B	$7,500 - $13,000
C	$4,201 - $10,000
D	Up to $4,200

(underlining added)

[21] The Applicant submits that the clause in the predecessor agreement was not subject to any claim in relation to negotiations for the current Agreement. The clause in the Agreement is no more than an update to the amounts payable in the clause in the predecessor agreement Rather, it says that the transposition error – the failure to include the descriptive words “Up to” in the Agreement – is one of omission.

[22] The Applicant submits that the failure to include the words “up to” with the Level D allowance in clause 20.1(d)(i) creates ambiguity or uncertainty because of the following elements of the clause:

(a) The words:
(i) “range of allowances” in clause 20.1(d)(i); and
(ii) “allowance ranges” in clause 20.1(d)(v),
used to describe the financial amount of the responsibility allowance set out in clause 20.1(d)(i) of the 2019 Agreement;
(b) The monetary amount of the Level D allowance specified in the table in clause 20.1(d)(i); and
(c) The absence of any qualifying words next to the letter “D” in the column “Level” to set the range for the Level D allowance.

[23] It submits that each of these elements, in combination with the other two, leaves open two different arguable meanings of the amount of the allowance payable to employees entitled to the Level D allowance. These alternative contentions are:

1. the Level D allowance is a range between nil and the amount specified; and

2. the Level D allowance is the fixed amount specified because of the absence of the clarifying words next to the letter D.

The first contention

[24] The first contention is that the Level D allowance provides for a range payable between zero and the amount specified in the table.

[25] It is submitted that this contention is open on a plain reading of the words because the opening words of clause 20.1(d)(i) state:

The following range of allowances per annum apply from 1 February…

[26] The Applicant submits that:

● the word “range,” on a plain meaning means an amount between an upper and lower limit. Further, it says that “allowances” is expressed in the plural. Together this suggests that there is more than one allowance between a lower and upper limit in any Level;
● the word “following” means all things that come after so that each of the things that follow are the “range” of allowances;

[27] Therefore, it is submitted, the phrase “following range of allowances” must mean that each allowance that comes after the introductory words are allowances within a lower and upper range.

[28] The Applicant submits that this construction is consistent with the industrial context of the Applicant applying a range of allowances for each level of responsibility.

[29] In further support of its contention the Applicant submits clause 20.1(d)(v), which deals with annual adjustments, refers to the “financial allowance ranges set out in cl. 20.1(d)(i),” reinforcing that at each Level there should be a range with a lower and upper limit is intended.

[30] The Applicant submits that clause 20.1(d) must be read in conjunction with clauses 20.1(a), (b) and (e) which provide for a range of duties that may be performed (clause 20.1(a)(i)), specific advice as to the duties to be performed (clause 20.1(b)(i)) further described in clause 20.1(c) and a time allowance (in addition to the monetary allowance) for each level of responsibility which, for Level D is up to 4 periods (my underlining).

[31] The Applicant submits that the range of duties and the range of time allowance at Level D in conjunction with the language of clause 20.1(d)(i) supports the first contention.

The second contention

[32] The second contention is that the allowance is a fixed amount at Level D. The Applicant submits that, while this may appear evident on the face of clause 20.1(d)(i) – and hence is arguable – to accept it would be to ignore the remainder of clause 20.1, the industrial history and context and practice. Further, it would result in all employees eligible for the same monetary allowance at Level D regardless of the range of additional responsibilities undertaken or the range of time allowance granted.

Consideration

[33] I am satisfied that when the responsibility allowance for Level D is considered in the context of clause 20.1 as a whole there arises ambiguity or uncertainty as to whether that allowance is a range (commencing at $0 to a maximum as provided) or is to be paid as the precise amount as shown.

[34] I have reached this conclusion after considering the text in clause 20.1 as a whole. This includes a consideration of the words used in clause 20.1(d)(i) (“following range of allowances” or “financial allowance ranges set out in cl. 20.1(d)(i)”) in conjunction with other provisions which suggest that, at each Level of responsibility, there are varying “grades” of responsibility, a general discretion to the Principal to determine what responsibilities are required to be undertaken and by whom and a variable allowance in money and time for taking such responsibility.

[35] The words “range of allowances” and “allowance ranges” do, on their own, create a degree of uncertainty but this uncertainty is confirmed when considered in context of clause 20.1 as a whole.

[36] Clause 20.1 (excluding the allowance for Level D in clause 20.1(d)) confirms a hierarchy of responsibilities across and within Levels A, B, C or D. How the responsibilities at any particular Level are distributed – how much is given to any one individual – is a matter totally at the discretion of the school. For example, a teacher in either Senior or Junior School or in the Early Learning Centre may take on specialised areas of responsibility, depending on their particular skills or interests and, it can reasonably be expected, the number of colleagues who wish to take on additional responsibilities and their skills and areas of expertise. 4

[37] I have taken into account that:

•  the Principal determines who hold levels of responsibility (clause 20.1(a)(ii));

•  the Principal advises the tenure (the period for which the responsibility will be exercised), the duties required, the (monetary) allowance, the time allowance and the Level at which the responsibility sits (clause 20.1(b)(i) & (ii));

[38] Further, taking on additional responsibilities provides not just a monetary allowance but a time allowance. That is, a teacher taking on responsibility is compensated both financially and through a range of available reductions in classroom time. This is apparent from clause 20.1(e)).

[39] Further to the varying responsibilities within each level, it would appear that there is an alignment of the expression of monetary allowances with time allowances except for Level D:

Level	Monetary allowance expression (the following range of allowances per annum apply…)	Time allowance expression (Range (per 10 day cycle))
A	Minimum of $a	13 or more periods
B	From $b to $a	8-14 periods
C	From $c+1 to $d	4-14 periods
D	$c	Up to 4 periods

[40] When the monetary allowance for Level D is considered in conjunction with a sliding time allowance at Level D, a sliding time and monetary allowances at Levels A, B and C and the variability as to the range of responsibilities at a particular Level, that it should only have one value – and no range – is incongruous, confusing and gives rise to uncertainty.

[41] I am also satisfied that the wording in clause 20.1(d)(i) suggests that a range should apply to each allowance. Even where the allowance has only one limit specified (Level A) the allowance is expressed as a “minimum of” confirming a range but with no upper limit specified.

[42] Given these circumstances I am satisfied that there is ambiguity or uncertainty in the clause.

[43] Both contentions as put by the Applicant can be argued with reasonable conviction.

MUTUAL INTENTION OF THE PARTIES

[44] If the Commission is minded to exercise its discretion to vary the Agreement, the Applicant submits that regard should be had to the intention of the parties at the time the Agreement was made. Taking this, and the conduct of the parties since the Agreement was made into account, confirms that the intention was always that the Level D allowance would be “up to” the amount specified.

[45] In considering the allowance as expressed in the predecessor agreement, evidence with respect to negotiations for the new agreement and the conduct of the parties since the Agreement became operative, I am satisfied that it was the intention of the parties that Level D in clause 20.1(d) should have been expressed as a range with no lower limit specified (reflecting the expression of the allowance at Level A).

[46] In reaching this conclusion I have accepted the undisputed evidence of Mr Blair as to the negotiating process and the conduct of the parties.

[47] In these circumstances I have determined that I should exercise my discretion and vary the Agreement. Further, I have determined that this variation should be as sought by the Applicant.

CONCLUSION

[48] I am satisfied that:

(a) there is ambiguity or uncertainty evident in the expression of the responsibility allowance at Level D in clause 20.1(d) of the Agreement;
(b) it was the intention of the parties that the allowance at Level D be expressed as a range “up to” the amount specified.

[49] I have therefore determined to grant the application and vary clause 20.1(d)(i) of the Presbyterian Ladies’ College Teachers Agreement 2019-2021 by inserting “ – up to” after “D” where it appears in the table in the clause.

[50] The Applicant seeks that the Agreement be varied from 19 April 2019 – that date at which it commenced operation. Whilst such an extensive backdating might be considered unusual, in circumstances where the parties bound by the Agreement have acted as if this was the way the clause operated from the time it commenced operation, and where no submissions have been put in opposition to any aspect of the application, I am satisfied that the variation should be effective from 19 April 2019.

[51] An order 5 to this effect will be issued with this decision.

COMMISSIONER

 1   Public Transport Corporation of Victoria and Australian Rail, Tram and Bus Industry union and others Print M2454 as cited in Re Construction, Forestry, Mining and Energy Union Print R2431 at [13].

 2   S J Higgins Pty Ltd and others v CFMEU PR903843 at [7]

 3   See Tenix Defence Pty LimitedPR917548 at [28]-[32] and the cases cited therein.

 4   Whilst this may not occur or be common there is nothing in the wording of the clause to stop this occurring

 5   PR727787.

Printed by authority of the Commonwealth Government Printer

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