Complete Office Staffing Pty Ltd
[2009] FWA 498
•2 OCTOBER 2009
[2009] FWA 498 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity
(AG2009/11258)
COMPLETE OFFICE STAFFING PTY LTD COLLECTIVE AGREEMENT 2009
COMMISSIONER THATCHER | SYDNEY, 2 OCTOBER 2009 |
No ambiguity – absence of jurisdictional fact – no power to vary to include junior rates
[1] Complete Office Staffing Pty Ltd has made application pursuant to Item 10 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Act) to vary the Complete Office Staffing Pty Ltd Collective Agreement 2009, an employee collective agreement made and approved under the Workplace Relations Act 1996 with effect from 1 July 2009 and which became a transitional instrument under the Act.
[2] The application seeks to vary the agreement by inserting rates of pay for junior employees.
[3] Item 10, Schedule 3 relevantly states:
“10 All kinds of transitional instrument: variation to remove ambiguities etc.
(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:
(a) to remove an ambiguity or uncertainty in the instrument; or
….”
[4] Similar to the situation which existed under s.170MD(6) (Vary to remove ambiguities etc) of the pre-reform Act, paragraph 10(1)(a) of Schedule 3 provides that a pre-requisite to varying an agreement under that provision is the finding of a jurisdictional fact of the existence of an ambiguity or uncertainty. In CoINVEST Limited, a Full Bench of the Australian Industrial Relations Commission, when considering a s.170MD(6) application, stated:
“[44] The first step in dealing with a s.170MD(6)(a) application - the identification of an ambiguity or uncertainty - requires the determination of a ‘jurisdictional fact.’ In Corporation of the City of Enfield v Developmental Assessment Commission the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term ‘jurisdictional fact’ in these terms:
‘The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.’
[45] Similarly in Re CFMEU - Termination of Bargaining Periods, Lee and Madgwick JJ said:
‘. . . the question presents as one of whether the Commission may have erred as to a ‘jurisdictional fact’, that is, the existence or non-existence of a state of affairs which was a statutory precondition to the Commission acting...’
[46] In the context of s.170MD(6)(a) the Commission must first identify the existence of an ambiguity or uncertainty before exercising its discretion to vary the agreement. We agree with the Full Bench in Re CFMEU Appeal which described the existence of an ambiguity or uncertainty as ‘a necessary statutory prerequisite to any variation being made.’ [Footnote: R2431, 25 February 1999 per Harrison SDP, Drake DP and Larkin C at paragraph 6.]” 1
[5] Complete Office Staffing submits that “the scheduled rates provided in the current agreement contain adult rates only. Junior employees are unclear on their rate, therefore we would like to remove this ambiguity and specify in detail the rates”. 2
[6] Whether the employees are unclear about their rates of pay under the agreement is a different question to whether there is ambiguity or uncertainty in the Agreement. The relevant question in this matter is whether “on a proper construction of the relevant provision of an agreement, the wording of the provision is susceptible to more than one meaning”. 3
[7] The rates of pay contained in the agreement are not susceptible to more than one meaning. There can be no doubt that the Agreement does not provide rates for persons under 21 years of age. Whilst provision might be made for junior rates under the notional agreement preserving a state award (NAPSA), namely the Storemen and Packers, General (State) Award, clause 4.0 of the Agreement provides that the agreement ‘applies to the exclusion of all other industrial instruments created, or in force, under any law.’
[8] I concur with the statement of Munro J in Re Linfox-CFMEU (CSR Timber) Enterprise Agreement 1997: 4
“… the power [to vary an agreement to remove an ambiguity] must be exercised to remove any ambiguity. It may not appropriately be used to re-write an agreement to install something that was not inherent to the agreement when it was made”. 5
[9] Since the jurisdictional fact of an ambiguity or uncertainty in the Agreement can not be established, Fair Work Australia does not have the jurisdiction to grant the variation sought. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Ms S Mehani, for Complete Office Staffing Pty Ltd.
Hearing details:
2009
Sydney
October 1
1 PR947076, 25 May 2004 per Ross VP, Ives DP and Blair C.
2 Form F25 filed on 5 August 2009.
3 Re Tenix Defence Systems Pty Ltd Certified Agreement, PR917548, 9 May 2000 per Ross VP, O’Callaghan SDP and Foggo Cat [49].
4 Q2603, 30 June 1998.
5 At [29].
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