Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools

[2021] FWCA 3525

[2021] FWCA 3525

FAIR WORK COMMISSION

DECISION

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

Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools
(AG2021/5501)

TOOWOOMBA CATHOLIC SCHOOLS PRINCIPALS’ AGREEMENT 2020-2024

Educational services
COMMISSIONER SPENCER	BRISBANE, 18 JUNE 2021

Application for variation of the Toowoomba Catholic Schools Principals' Agreement 2020-2024.

[1] An application has been made by the Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools (the Applicant) pursuant to s.217(1) of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty in clause 4.3.1 and Schedule 1(a) of the Toowoomba Catholic Schools Principals' Agreement 2020-2024 (the Agreement). The Agreement was approved by the Commission in a Decision 1 issued on 18 June 2021. The Independent Education Union – Queensland and Northern Territory Branch (the IEUA) is a bargaining representative for the Agreement and is covered by the Agreement.

[2] The ambiguity or uncertainty is found at clause 4.3.1 and Schedule 1(a) of the Agreement, which concerns the wage rates for Principals appointed at Level 1 or Level 2.

[3] During the course of seeking approval of the Agreement, it was stated by the Applicant, and supported by the IEUA, that the current clause 4.3.1 and Schedule 1(a) of the Agreement are mistakes made by the employer when drafting the Agreement, and are not what was agreed between the parties during negotiations.

[4] The Applicant contends that an ambiguity is contained in clause 4.3.1 and Schedule 1(a) of the Agreement, as the current drafting of the clauses represent terms less favourable to the relevant employees than was negotiated between the parties, and are not consistent with what was communicated to the relevant employees during the access period.

RELEVANT LEGSILATION

[5] The application has been made under s.217 of the Act, which 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.”

CONSIDERATION

[6] 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. 2 There is no clear test for determining when an ambiguity exists3 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.4 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.5 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.6

[7] On the basis of the material before me I am satisfied that there is an ambiguity on the basis that clause 4.3.1 and Schedule 1(a) as contained in the approved Agreement, do not represent the intentions of the parties and what was agreed between the parties during negotiations.

[8] I am also satisfied that the variation reflects the proper construction of the Agreement, and note that the variation is sought by consent of the Applicant and the IEUA, which has been consulted and has confirmed it consents to the proposed variation.

CONCLUSION

[9] I am satisfied that it is appropriate to vary the Agreement to resolve an ambiguity or uncertainty. I am also satisfied that the variation proposed is appropriate. The variation reflects the proper construction of the Agreement. It is appropriate that the discretion to vary the Agreement to resolve the ambiguity or uncertainty is exercised.

[10] I Order that the Agreement be varied as follow:

(i) varying clause 4.3.1 of the Agreement on page 19 of the Agreement as follows:

inserting the words “with the exception of principals appointed to Classification level 1 or level 2 who shall be paid at pay point three,” after the words “A Principal shall, on appointment at a school, be paid at pay point one (of the classification level applicable to that school)” and before the words “and shall progress, subject to satisfactory performance and the school remaining classified in a particular enrolment level, by annual increments to pay point five.”

(ii) varying the table in Schedule 1(a) Salary Schedule on page 36 of the Agreement as follows:

by blanking out all pay points 1 and pay points 2 for school classification level 1 and level 2

[11] The variations will operate from 25 June 2021, which is the day on which the Agreement will commence to operate. An order 7 giving effect to this decision will be separately issued. A consolidated version of the Agreement as varied is attached.

COMMISSIONER

 1   [2021] FWCA 3528.

 2   Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].

 3   Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.

 4   Re Victorian Public Transport Enterprise Agreement 1994 [1995] AIRC 192 per VP Ross, SDP Polites and Cmr Grimshaw.

 5   Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per VP Ross, SDP O’Callaghan and Cmr Foggo.

 6 Ibid at [32].

 7   PR730850.

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