Coles Group Supply Chain Pty Ltd

[2014] FWCA 7535

[2014] FWCA 7535

FAIR WORK COMMISSION

DECISION

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

Coles Group Supply Chain Pty Ltd
(AG2014/9363)

COLES SMEATON GRANGE (NUW) REGIONAL DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 22 OCTOBER 2014

Application for variation of the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014.

[1] An application has been made for approval of a variation of the Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.217 of the Fair Work Act 2009 (the Act) by Coles Group Supply Chain Pty Ltd. The application was made at the same time as the application for approval of the agreement (AG2014/7801).

[2]  The Agreement contains a provision, Clause 22.1.11 in respect to the evidence required in the case of single day absences on personal leave. The Clause contains a cross reference as follows: “when the number of single day absences over a twelve month period exceed the number prescribed in Clause 22.1.9 above”. Clause 22.1.9 does not contain any reference to the number of single day absences. Clause 22.1.10 does contain a reference to the number of single day absences.

[3] I am satisfied that:

a. The application to vary the Agreement has been made by the employer consistent with Section 217(a) of the Act.

b. The meaning of Clause 22.1.11 is uncertain because it is unclear in what circumstances the evidentiary requirements set out in that clause is required because the cross referenced clause does not contain the information.

c. The uncertainty has arisen because of an obvious error in the cross referenced clause number.

d. It is quite apparent from reading the clause in context that it was the mutual intention of the parties that the number of single day absences referred to is the number in Clause 22.1.10 and not Clause 22.1.9.

e. The NUW was the bargaining representative for the employees in reaching the agreement and the NUW supports the variation.

f. The uncertainty which I have identified should be overcome by varying the clause to correct the cross reference.

[4] I shall make the variation. The variation shall operate from the date of this decision.

COMMISSIONER

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