Australian Capital Territory
[2024] FWCA 726
•28 FEBRUARY 2024
| [2024] FWCA 726 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.217—Enterprise agreement
Australian Capital Territory
(AG2024/431)
ACT PUBLIC SECTOR ACT FIRE & RESCUE ENTERPRISE AGREEMENT 2020-2024
| State and Territory government administration | |
| DEPUTY PRESIDENT DEAN | CANBERRA, 28 FEBRUARY 2024 |
Application for variation of the ACT Public Sector ACT Fire & Rescue Enterprise Agreement 2020-2024
An application has been made by the Australian Capital Territory (Applicant) pursuant to s.217 of the Fair Work Act 2009 to vary the ACT Public Sector Act Fire & Rescue Enterprise Agreement 2020-2024 to remove ambiguity and uncertainty.
The Agreement was approved by the Commission on 27 July 2020 and came into operation on 3 August 2020. It has a nominal expiry date of 31 May 2024.
The Applicant seeks to vary certain provisions of the Agreement pertaining to wages and allowances. The variations sought are set out in Annexure A to this decision.
The United Firefighters Union of Australia (UFUA), being the bargaining representative for the Agreement, supports the application.
The application outlined the grounds for the application as follows:
“The ambiguity and uncertainty arises from the current wording of clause E1.4 of the Agreement which states: ‘The parties agree that the wage increases and dates of effect arising from the enterprise agreement replacing the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2018 – 2021 will be applied for all classifications set out in Annex A of this agreement. For the purposes of this clause E1 -, the agreement replacing the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2018 – 2021 will be known as the Replacement Agreement.’ (emphasis added).
The intent of the clauses El.4, El.5, El.6 and El.8 of the Agreement was to ensure that employees covered by it received the same pay increases as those afforded to the wider ACT Public Sector.
ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2018 2021 was replaced by the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2021- 2022. This agreement has subsequently been replaced by the ACT Public Sector Administrative and Related Classifications Enterprise Agreement2023-2026.
It was never contemplated at the time of drafting the Agreement that the replacement agreement for the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2018 - 2021 would only ever be a short-term agreement.
The unintended consequence of is that, based on the current wording, employees covered under the ACT Fire & Rescue Enterprise Agreement 2020-2024 will be uncertain as to their entitlement to increases in wages and allowances without the variation applied for. Further the entitlement to increases in wages and entitlements will be unenforceable until the variation is made and comes into effect.
The terms of the variation have been agreed with the UFU in accordance with clause El.7 of the Agreement.
The variation will provide clarity and certainty to the employees covered by the Agreement regarding their entitlement to wage and allowance increases.”
Consideration
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 as to the employees’ entitlements arising from the current wording of clause E1.4 of the Agreement.
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.
Conclusion
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 28 February 2024.
DEPUTY PRESIDENT
Annexure A
[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].
Printed by authority of the Commonwealth Government Printer
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