Catholic Commission for Employment Relations

[2019] FWCA 7371

[2019] FWCA 7371

FAIR WORK COMMISSION

DECISION

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

Catholic Commission for Employment Relations
(AG2019/3685)

TEACHERS (DARAMALAN COLLEGE, MARIST COLLEGE CANBERRA, AND ST EDMUND'S COLLEGE, CANBERRA) MULTI-ENTERPRISE AGREEMENT 2018-2021

Educational services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 1 NOVEMBER 2019

Application to vary an agreement to remove an ambiguity or uncertainty – agreement varied.

[1] An application was made on 27 September 2019 to vary the Teachers (Daramalan College, Marist College Canberra and St Edmund’s College, Canberra) Multi-Enterprise Agreement 2018-2021 (the Agreement). 1 The application was made by the Catholic Commission for Employment Relations (CCER) pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary clause 2 - Arrangement of the Agreement to correct what are described in the application as “[f]ive typographical errors”. The variations sought are set out below with deletions highlighted with strikethrough and additions underlined:

“20. REVIEW AND APPRAISAL PROCEDURES

21.20. SUSPENSION

22.21. CONSULTATION AND REDUNDANCY

23.22. GRIEVANCE AND DISPUTES RESOLUTION PROCEDURE

24.23. COPY OF AGREEMENT

...

ANNEXURE A: PORTABILITY OF PERSONAL/CARER’S SICK LEAVE”

[3] On 3 October 2019 the Fair Work Commission (the Commission) sent an email to the CCER requesting that it outline what ambiguity or uncertainty arose from the five typographical errors which the parties had identified in clause 2 of the Agreement. The email was copied to the Independent Education Union of Australia (IEU) (which is covered by the Agreement) and invited the IEU to make any submissions on the matter.

[4] The CCER responded on 10 October 2019 advising that the reference in clause 2 of the Agreement to “Review and Appraisal Procedures” was an error as in bargaining for the Agreement the parties agreed to remove these procedures which were included in the predecessor agreement. More specifically, the CCER submitted that ambiguity or uncertainty would arise as a result of a person covered by the Agreement and familiar with the predecessor agreement forming the view that the procedures had been retained in the Agreement when they had not and/or that the procedures had been mistakenly deleted from the Agreement. As to the other variations sought, the CCER requested that the Commission extend its discretionary power to vary the Agreement for the sake of completeness.

[5] Also on 10 October 2019 the IEU advised the Commission that it “supported the submission by CCER in this matter.”

[6] Section 217 of the Act provides as follows:

“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.”

[7] In Sunfresh Health Pty Ltd 2 Deputy President Asbury noted as follows:

“[11] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement is enlivened under s.217 of the Act. There is no clear test for determining when an ambiguity exists but the Commission will generally err on the side of finding an ambiguity or uncertainty where rival contentions are advanced and there is an arguable case made out for more than one contention. However, the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning. Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will make a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.” 3 (Endnotes not included)

[8] I am satisfied that the inclusion of the reference to wrote to “Review and Appraisal Procedures” in clause 2 of the Agreement has the potential to cause uncertainty in circumstances where the Agreement does not include any such provision. As such, I am willing to exercise the discretion available to the Commission under s.217 of the Act to vary clause 2 to delete the reference to “Review and Appraisal Procedures” and to make the consequential numbering changes sought by CCER.

[9] As to the other variations sought by CCER, I am not satisfied that any ambiguity or uncertainty arises from the current wording of clause 2. I am nevertheless for reasons of consistency with the body of the Agreement willing to exercise the discretion available to the Commission under s.586 of the Act to amend the Agreement as sought. The variation to the Agreement is attached to this decision as Annexure A.

[10] A consolidated version of the Agreement which contains the variations will be published in conjunction with this decision. The variations operate from 1 November 2019.

Annexure A

 1   AE504459

 2   [2018] FWC 5807

 3   Ibid at [11]

Printed by authority of the Commonwealth Government Printer

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