Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2013] FWCA 345

[2013] FWCA 345

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2012/11709)

CHUBB FIRE & SECURITY PTY LTD SOUTH EAST QUEENSLAND AND LISMORE ELECTRICAL ENTERPRISE AGREEMENT 2011-2014

Electrical contracting industry
COMMISSIONER BOOTH	BRISBANE, 23 JANUARY 2013

Application remove ambiguity or uncertainty in clause 21.1 of the Enterprise Agreement .

[1] This is an application under s.217 of the Fair Work Act 2009 (the Act) by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Chubb Fire and Security Pty Ltd (Chubb) to vary the Chubb Fire & Security Pty Ltd South East Queensland and Lismore Electrical Enterprise Agreement 2011-2014 (the Agreement) to remove an ambiguity or uncertainty.

[2] Section 217 of the Act provides that:

“(1) FWA 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 FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[3] In this matter theambiguity and uncertainty asserted by CEPU concerns the application of clause 21.1 and 21.2 of the Agreement. Chubb and CEPU have now agreed that the interpretation of clause 21.1.1 and 21.2 of the Agreement will be as follows:-

1. By deleting clause 21.1.1 of the Agreement and inserting the following:

21.1.1 On Call

While on-call, and in receipt of that on-call allowance, employees will be available to respond to call-outs and will be paid an allowance of $360 per week or $40 per day Monday to Friday and $80 per day Saturday, Sunday and public holidays.

2. By deleting sub-clause 21.2.1 of the Agreement and inserting the following:

21.2.1 An employee who is not in receipt of the on call allowance and who is recalled to work overtime after leaving work will be paid a minimum of four hours overtime for each recall.

[4] The CEPU seek that the variation has retrospective operation from the date of this order. I have found that the variation to be made does reflect the mutual intention of the parties at the time the Agreement was made, therefore it is appropriate that the variation have effect from the date requested in CEPU’s application.

[5] The varied agreement will come into force from 27 August 2012.

COMMISSIONER

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