Australian Nursing and Midwifery Federation

[2023] FWCA 764

[2023] FWCA 764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Australian Nursing and Midwifery Federation

(AG2023/441)

Seventh-day Adventist Aged Care (Victoria) Pty Ltd and (Trading as AdventCare), ANMF and HSU Enterprise Agreement 2022

Aged care industry
COMMISSIONER JOHNS	MELBOURNE, 9 MARCH 2023

Application for variation of the Seventh-day Adventist Aged Care (Victoria) Pty Ltd and (Trading as AdventCare), ANMF and HSU Enterprise Agreement 2022

1. An application has been made by the Australian Nursing and Midwifery Federation (Applicant) pursuant to s.217 of the Fair Work Act 2009 (Act) to vary the Seventh-day Adventist Aged Care (Victoria) Pty Ltd and (Trading as AdventCare), ANMF and HSU Enterprise Agreement 2022[1] (Agreement) to remove ambiguity and uncertainty.

1. Seventh-Day Adventist Aged Care (Victoria) Ltd (Employer), who is covered by the Agreement supports the application.

1. The application proposes a variation to clauses 27.5(d) and 46.4 of the Agreement in order to remove entitlements that were not agreed upon by the parties.

1. The Agreement was lodged for approval with the Commission on 2 February 2023 and was subsequently approved on 15 February 2023. After the approval the parties discovered that the table set out in clause 27.5(d) conflicts with the entitlements expressed in clause 27.5(i)-(ii), which in turn creates a further anomaly in the table at clause 46.4. The Applicant submit that tables bestow more beneficial entitlements to employees covered by the Agreement than those which were agreed by the Employer and that the content of the tables appear to have been inserted by error in the drafting of the Agreement.

1. In order to remove the uncertainty identified, the Applicant proposes the following amendments:

1.   That clause 27.5(d) is removed from the Agreement.

2.   That the table at clause 46.4 is removed from the Agreement.

1. The Applicant submits that the remaining wording surrounding both clauses sets out what was agreed between the parties.

1. Section 217 of the Act provides the following:

“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.”

1. The Applicant is an employee organisation covered by the Agreement and therefore has standing to make the application.

1. As seems clear from the text of s.217, the discretion to vary an agreement may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the agreement. The principles that are to be applied in considering an application under s.217 may be shortly stated:

·   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 advanced and an arguable case is made out for more than one contention;[4] 

·   However, the Commission must make a positive 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 judgment as to whether the wording of a provision is susceptible to more than one meaning;[6] and

·   Once an ambiguity or uncertainty has been identified, in exercising the discretion whether to vary the agreement, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.[7] 

1. Having considered clause 27.5(d) and the table at clause 46.4 of the Agreement I am satisfied that they create an uncertainty which engages with s.217 of the Act. I am also satisfied that I should amend the Agreement to remove the uncertainty and that it is appropriate to do so in the manner proposed.

1. In order to remove an uncertainty, the application is granted and the Agreement is varied as outlined earlier.

COMMISSIONER

[1] AE519176

[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]  See Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (PR917548) at [32]

Printed by authority of the Commonwealth Government Printer

<AE519176  PR760176>