CLB No.1 Pty Limited t/as Wagamama

[2009] FWA 276

[2009] FWA 276

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170MD(6) - pre-reform Act Variation of certified agreement to remove ambiguity

CLB No.1 Pty Limited t/as Wagamama
(AG2009/117)

WAGAMAMA - CERTIFIED - AGREEMENT 2002-2005
(ODN AG2002/1259) [AG814180]

Restaurants
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 11 SEPTEMBER 2009

Alleged ambiguity or uncertainty in respect of clauses 3.2.2, 3.2.3, 3.2.5 and 3.2.6 of the agreement.

[1] The Applicant (CLB No.1 Pty Limited trading as ‘Wagamama’) in this matter contends that the Wagamama Certified Agreement 2002-2005 (“the Agreement”) is ambiguous and uncertain in certain respects.

[2] The Applicant filed its application concerning the Agreement, which is a pre-reform certified agreement, with the Australian Industrial Relations Commission on 26 June 2009.

[3] As the application is being dealt with after 1 July 2009 (WR Act repeal day), pursuant to Item 10 of Part 3 in Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the application is to be dealt with by Fair Work Australia who may make a determination to vary a transitional instrument (which includes a pre-reform certified agreement) to remove ambiguity or uncertainty in the instrument.

[4] On 30 July 2009 I conducted a hearing in relation to this matter. Shortly after the hearing I instructed the Applicant to distribute copies of the Application to its employees and convey an invitation from the Commission to its employees to make any submission they may wish to my Associate (by any of various methods of communication) by 28 August 2009.

[5] The Applicant subsequently provided a statutory declarations provided to me on 31 August 2009 attesting to the fact that the Applicant notified its employees of the Application and asked the employees to provide a response (if any) to the proposed variation to the Agreement by 28 August 2009. As at the date of this order, the Commission has not received a response from any employee. I am satisfied that the Applicant’s employees have been notified of the Application and have been afforded an opportunity to respond to the Application.

[6] It appears to me that the Agreement is ambiguous and uncertain, for reason that such an outcome may arise owing to the manner in which reference is made to a relevant award or designated award in the Agreement.

[7] More particularly, it appears to me, initially, that clauses 3.2.2, 3.2.3 and 3.2.5 and 3.2.6 of the Agreement ought to make reference to the relevant state award as it was; that being the New South Wales Restaurants & Employees (State) Award (“the Award”). No designated award was designated at the time of certification.

[8] Clause 3.2.2 of the Agreement reads as follows:

“the unproductive full-time and part-time hourly rate of pay for levels 1, 2, 3 and 4 is at least 4% higher than the relevant or designated award for full-time or part-time monday to friday hourly rate of pay.”

[9] Other relevant clauses read similarly.

[10] Does the Award apply in respect of the specified clauses other than in relation to its rate of pay as they were at the time of certification of the Agreement? That is, should the reference to the Award rate refer to the Award rate as it might be amended from time to time following the certification of the Agreement?

[11] The Award applied for the No Disadvantage Test (Part VIE of the Workplace Relations Act 1996 (“the Pre-Reform Act”) in respect of its rates of pay as they were at the day immediately prior to the certification.

[12] Nothing in the terms of the clauses expressly states that the Award rates to apply will be those as adjusted from time to time (by the State Commission or by the Australian Fair Pay Commission).

[13] Further, the plain words of the Agreement refer to the present tense “is” and not to the future continuing tense “will be” (or “at all times will be”). Nor do the wages schedules suggest anything to the contrary.

[14] It would have been reasonable to have expected the terms of the Agreement to do more work than this in order to disassociate it from the operation of the No Disadvantage Test under the Pre-Reform Act and to set in process a train of continued adjustment against amended Award rates of pay and over time.

[15] To give the Agreement the alternative meaning would require me import further words into the Agreement as it stands, which would be contrary to the principles of construction.

[16] Finally, clause 3.2.7 of the Agreement sets out the wage escalation machinery for the life of the Agreement. It appears to me that the purpose of clause 3.2.7 of the Agreement was to provide wage increases on the base established at time of certification, and not by reference to any other external instrument.

[17] Again, there are no words in the Agreement that suggest any wage adjustment mechanism other than on the terms expressly provided for in the Agreement.

[18] To some measure the Agreement itself (see Appendix 1 thereof) and (more so) the operation of the Fair Work Act2009 will come to serve as a safety net for employees covered by the Agreement in respect of the current Australian Pay and Classification Scale.

[19] That said, I conclude that the reference to the Award is a reference to the rates of pay in the Award as they were at the date of certification.

[20] I do not agree that the drafting changes proposed by the Applicant will necessarily have the effect of removing the ambiguity or uncertainty or putting the matter beyond all doubt. This is because the amendments do not include a reference to the “rates of pay” as they were in the Award at the date of certification.

[21] For this reason, I will order the various amendments as sought but vary by the same order each to include the words “the rates of pay in” in the first sentence of the first paragraph in each sub clause, as set out in Schedule One below.

[22] An order giving effect to this decision will issue simultaneously.

SENIOR DEPUTY PRESIDENT

Appearances:

C Agnew of Agnew D’Arcy Legal for the Applicant

Hearing details:

2009.
Brisbane:
July 30.

Printed by authority of the Commonwealth Government Printer

<Price code A, AG814180  PR989204 >

SCHEDULE ONE

Table of variations to Wagamama – Certified Agreement 2002-2005 [AG 814180]

Certified Agreement

Proposed Variation

3.2.2 how is the unproductive full-time and part-time hourly rate of pay calculated?

the unproductive full-time and part-time hourly rate of pay for levels 1, 2, 3 and 4 is at least 4% higher than the relevant or designated award for full-time or part-time monday to friday hourly rate of pay. this additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave loading where applicable under the relevant or designated award.

how long will you be paid the unproductive full-time/part-time hourly rate of pay?

you will be paid the unproductive full-time/part-time hourly rate of pay from the commencement of your employment with wagamama until you are deemed to be a productive employee or after 6 months employment with wagamama whichever is the lesser period.

3.2.2 how is the unproductive full-time and part-time hourly rate of pay calculated?

The unproductive full-time and part-time hourly rate of pay for levels 1, 2, 3 and 4 is at least 4% higher than the rates of pay in the award at the date of certification of this Agreement for full-time or part-time Monday to Friday hourly rate of pay. This additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave loading where applicable under the award at the date of certification of this Agreement.

how long will you be paid the unproductive full-time/part-time hourly rate of pay?

You will be paid the unproductive full-time/part-time hourly rate of pay from the commencement of your employment with wagamama until you are deemed to be a productive employee or after 6 months employment with wagamama whichever is the lesser period.

3.2.3 how is the productive full-time and part-time hourly rate of pay calculated?

the productive full-time and part-time hourly rate of pay for levels 1, 2, 3 and 4 is at least 13% higher than the relevant or designated award for full-time or part-time monday to friday hourly rate of pay. this additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave loading where applicable under the relevant or designated award.

how are level 4 employees paid?

level 4 employees will be paid in accordance with clause 6.4 of this agreement

3.2.3 how is the productive full-time and part-time hourly rate of pay calculated?

The productive full-time and part-time hourly rate of pay for levels 1, 2, 3 and 4 is at least 13% higher than the rates of pay in the award at the date of certification of this Agreement for full-time or part-time Monday to Friday hourly rate of pay. This additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave loading where applicable under the award at the date of certification of this Agreement.

how are level 4 employees paid?

Level 4 employees will be paid in accordance with clause 6.4 of this agreement

3.2.5 how is the unproductive casual hourly rate of pay calculated?

the unproductive casual hourly rate of pay for levels 1, 2, 3 and 4 is at least 1% higher than the relevant or designated award for full-time or part-time monday to friday hourly rate of pay. this additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave payment where applicable under the relevant or designated award.

how long will you be paid the unproductive casual hourly rate of pay?

you will be paid the unproductive casual hourly rate of pay from the commencement of your employment with wagamama until you are deemed to be a productive employee or after 3 months employment with wagamama whichever is the lesser period.

3.2.5 how is the unproductive casual hourly rate of pay calculated?

The unproductive casual hourly rate of pay for levels 1, 2, 3 and 4 is at least 1% higher than the rates of pay in the award at the date of certification of this Agreement for full-time or part-time Monday to Friday hourly rate of pay. This additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave payment where applicable under the award at the date of certification of this Agreement.

how long will you be paid the unproductive casual hourly rate of pay?

You will be paid the unproductive casual hourly rate of pay from the commencement of your employment with wagamama until you are deemed to be a productive employee or after 3 months employment with wagamama whichever is the lesser period.

3.2.6 how is the productive casual hourly rate of pay calculated?

the productive casual hourly rate of pay for levels 1, 2, 3 and 4 is at least 13% higher than the relevant or designated award casual monday to friday hourly rate of pay. this additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave loading where applicable under the relevant or designated award.

3.2.6 how is the productive casual hourly rate of pay calculated?

The productive casual hourly rate of pay for levels 1, 2, 3 and 4 is at least 13% higher than the rates of pay in the award at the date of certification of this Agreement casual Monday to Friday hourly rate of pay. This additional amount is paid to compensate you for weekend penalties, public holiday penalties, some overtime penalties, allowances, and annual leave loading where applicable under the award at the date of certification of this Agreement.