Australian Capital Territory
[2022] FWCA 1888
•14 JUNE 2022
| [2022] FWCA 1888 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
Australian Capital Territory
(AG2022/1667)
ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022
| State and Territory government administration | |
| DEPUTY PRESIDENT DEAN | CANBERRA, 14 JUNE 2022 |
Application for variation of the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022.
The Australian Capital Territory (Applicant) has applied pursuant to s.217 of the Fair Work Act 2009 to vary the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022 (the Agreement).
The Agreement was approved by the Commission on 11 January 2022 and came into operation on 18 January 2022. It has a nominal expiry date of 31 October 2022.
The application seeks a variation to clause 47.6.5 by deleting the allowance rate “$2,6339” and replacing with “$2,691”. The Applicant states that this is the result of an unintentional and accidental typographical error.
Clause 47.6 of the Agreement containing the purported error reads:
“47.6. A Radiation Oncologist is entitled to be paid a Regional Service Development Allowance at the following rates on each occasion that the Radiation Oncologist is required to provide radiation oncology services at a regional outreach clinic referred to below. These payments will be drawn from the Radiation Oncology Sub-Fund.
47.6.1. Bega $3,705 47.6.2. Moruya $3,705 47.6.3. Goulburn $2,339 47.6.4. Cooma $2,339 47.6.5. Young $2,6339 47.6.6. The allowance will be adjusted in accordance with clause 56.
The Applicant outlined the grounds for the application as follows:
“The bargaining parties agreed that the allowance rates at clause 46.6 of the ACTPS Medical Practitioners Enterprise Agreement 2017-2021 (AG2020/3291) would be increased by 1.35% in accordance with clause 56 and 28.2 of the Agreement as follows:
Previous EA Current EA
Correct calculation & proposed amendment
Clause 46.6 of the ACTPS Medical Practitioners Enterprise Agreement 2017 – 2021 (AG2020/3291)
Clause 47.6 of the ACTPS Medical Practitioners Enterprise Agreement 2021 – 2022 (AG2021/9011)
1.35% applied to the allowance in accordance with Clause 56 and 28.2 of the MPEA 2021-2022
46.6.5 Young $2,620
47.6.5 Young $2,6339
47.6.5 Young $2,691
As the bargaining parties did not agree to $2,6339 nor was it their intention to change the application of clause 56 and 28.2 to the allowances listed at clause 47.6, the ACT Public Sector requests the ambiguity be corrected to $2691 at clause 47.6.5 through this application.”
On 2 June 2022, the Commission wrote to all bargaining representatives to the Agreement inviting a response to the application.
On 6 June 2022, the Australian Salaried Medical Officers’ Federation, a party to the Agreement, advised that it did not object to the application and does not seek to be heard on the matter. No response from other parties were received.
Section 217 of the Act provides:
“217 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.”
The Applicant is the employer covered by the Agreement and has standing to make the application.
The principles to be applied by the Commission when determining s.217 applications were summarised by Deputy President Gostencnik in The Trustee for ePharmacy Unit Trust T/A ePharmacy[1] as follows:
· 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;[2]
· 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;[3]
· The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions and an arguable case is made out for more than one contention;[4]
· However, the Commission must make a 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;[5]
· 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 judgement as to whether the wording of a provision is susceptible to more than one meaning;[6]
· However, the task of the Commission is to determine whether a provision in an agreement is ambiguous or uncertain. That task is distinct from determining the proper construction or true meaning of a provision of an agreement.[7]
· A provision in an agreement may be ambiguous even though it is capable of interpretation and it is not necessary for the Commission to interpret a provision of an agreement to reach a conclusion concerning the presence of ambiguity or uncertainty.[8] Consequently there is no need for the Commission to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements. Moreover, the Commission is obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, “equity, good conscience and the merits of the matter” (s 578) and it is not bound by the rules of evidence and procedure in relation to a matter (s 591). These provisions of the Act apply to the discharge by the Commission’s functions under s 217(1),[9] including by allowing the Commission to have regard to evidence of the parties’ common intention and to the history of agreement provision as part of the “equity, good conscience and the merits” of the matter.[10]
· Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission may also have regard to the mutual or common intention of the parties at the time the agreement was made.[11]
I am satisfied that there is an uncertainty on the face of the Agreement as to the correct amount for the allowance in question, given the location of the comma in the specified amount of “$2,6339” is not an actual dollar amount. It is also clear that the parties intended that the amount of $2,620 found in the previous Agreement be increased by 1.35%, resulting in a new amount of $2,691.
I am further satisfied that the proposed variation will correct the uncertainty in a manner that is consistent with the understanding held by the parties at the time the Agreement was made.
The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.
In accordance with s.217(2) of the Act, the variation operates from 14 June 2022.
DEPUTY PRESIDENT
[1] [2021] FWC 3447.
[2] See Re Tenix Defence Systems Pty Limited Certified Agreement 2001 - 2004 (PR917548) at [28], [32] and [35]
[3] Ibid at [29]
[4] Ibid at [31]
[5] See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57]
[6] See Re Civil Construction Corporation Enterprise Agreement (PR939346); SJ Higgins Pty Ltd and Others v CFMEU (PR903843); Re CFMEU Appeal (Print R2431)
[7] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50 at [67]
[8] Ibid
[9] Ibid at [68]
[10] Ibid
[11] See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]
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