Department of Environment, Land, Water and Planning

[2022] FWCA 2937

[2022] FWCA 2937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Department of Environment, Land, Water and Planning

(AG2022/3560)

Field Staff and Wild Dog Controllers Agreement 2021

State and Territory government administration
COMMISSIONER YILMAZ	MELBOURNE, 31 AUGUST 2022

Application for variation of the Field Staff and Wild Dog Controllers Agreement 2021 to remove uncertainty or ambiguity - application granted.

1. The Department of Environment, Land, Water and Planning (the Applicant) has made an application pursuant to s.217(1) of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty in the Field Staff and Wild Dog Controllers Agreement 2021[1] (Agreement).

1. The Agreement was approved with undertakings by the Commission on 4 March 2022 and the Applicant agreed to file an s.217 application subsequent to approval.[2] During the process of seeking approval of the Agreement, the Applicant identified numerous cross-referencing and clause numbering errors in the Agreement document and seeks to correct the errors by way of an application pursuant to s.217 of the Act.

1. The Applicant submits that the cross-referencing errors lead to uncertainty and ambiguity as the correct clause references cannot be easily ascertained. The corrections sought by the Applicant are as follows:

·   That the words “clause Error! Reference source not found.. clause Error! Reference source not found” in clause 2.23 of the Agreement are substituted with the words “clause 42.5(a), clause 47.4”;

·   That the reference to clause 33.31 in clause 3.2(a) of the Agreement is substituted with a reference to clause 33.1;

·   That the words “Right to Request Flexible Working Arrangements” appearing in the table at clause 8.3 of the Agreement are substituted with the words “Flexible Working Arrangements – Specific Circumstances”;

·   That the reference to clause 18(a) in clause 18.2(b) of the Agreement is substituted with a reference to clause 18.2(a);

·   That the reference to clause 13.3(a) in clause 18.3(b) of the Agreement is substituted with a reference to clause 18.3(a);

·   That the words “clause Error! Reference source not found..” in clause 19.2(b) of the Agreement are substituted with a reference to clause 18.3;

·   That clause 39.5 of the Agreement with the subheading ‘Allowable expenses include” is renumbered as clause 39.6;

·   That clauses 39.6, 39.7 and 39.8 of the current Agreement are renumbered as clauses 39.7, 39.8 and 39.9 respectively;

·    That the reference to clause 39.6 in clause 39.5(b) of the current Agreement is substituted with a reference to clause 39.7;

·   That the reference to clause 39.7 in clause 39.5(c) of the current Agreement is substituted with a reference to clause 39.8;

·   That the reference to clause 39.7(c) in clause 39.8 of the current Agreement is substituted with a reference to clause 39.8(c);

·   That clauses 1.2, 41.1, 41.4, 41.5, 41.6, 41.7 and 41.8 are renumbered as clauses 41.1, 41.2, 41.3, 41.4, 41.5, 41.6 and 41.7 respectively;

·   That clause 1.3 of the Agreement is deleted;

·   That clauses 41.7(c)-(d) of the current Agreement are renumbered as clauses 41.6(a)-(b);

·   That clauses 41.8(e)-(i) of the current Agreement are renumbered as clauses 41.7(a)-(e);

·   That the reference to subclause (a) in clause 42.6 of the Agreement is substituted with a reference to clause 42.5(a);

·   That the reference to clauses 45.5 and 45.645.5 at clause 45.3(a) of the Agreement is substituted with a reference to clauses 45.4 and 45.5; and

·   That the words “clause Error! Reference source not found.;” in clause 58.7(a)(i) of the Agreement are substituted with a reference to clause 51.

1. I note that the Australian Workers' Union, a bargaining representative for the Agreement, has indicated its support for the variation.

1. I am satisfied that the clauses, as varied, will resolve the ambiguity and uncertainty created by the numbering and cross-referencing errors identified by the Applicant. A copy of the Agreement as varied by this decision is attached.

1. In accordance with s.217 of the Act, the variation operates from 31 August 2022.

COMMISSIONER

[1] AE515222.

[2] [2022] FWCA 778.

Printed by authority of the Commonwealth Government Printer

<AE515222  PR745171>