Edith Bendall Lodge Inc.

[2016] FWCA 4431

[2016] FWCA 4431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Edith Bendall Lodge Inc.
(AG2016/3246)

EDITH BENDALL LODGE INC., ANMF AND HSU ENTERPRISE AGREEMENT 2014

Aged care industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 JULY 2016

Application for variation of the Edith Bendall Lodge Inc., ANMF and HSU Enterprise Agreement 2014.

[1] This is an application pursuant to s.217 of the Fair Work Act 2009 (Cth) (the Act) filed by Edith Bendall Lodge Inc. (the Applicant).

[2] The Application seeks to vary the Edith Bendall Lodge Inc., ANMF and HSU Enterprise Agreement 2014 (the Agreement). The variation sought to remove a drafting error which has created ambiguity and uncertainty in the application of the wage rates in Agreement.

Relevant Legislation

[3] Section 217 of the Act is 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.”

[4] On 10 June 2016 the Commission wrote to the Health Services Union (HSU) and the Australian Nursing and Midwifery Federation (ANMF) seeking the views of the parties as to whether they consent to the variation.

[5] On 14 June 2016 the Health Workers Union 1 (HWU) advised the Commission they have no objection to the amendments.

[6] The Australian Nursing and Midwifery Federation (ANMF) advised the Commission on 15 June 2016 they have no objection to the amendments. The ANMF support the Applicant’s submission that the drafting error has created ambiguity and uncertainty in the application of the agreement.

[7] The Application seeks to vary the Agreement in relation to the rates of pay for Registered Nurses and Enrolled Nurses in Appendix A of the Agreement.

[8] The Applicant set out the following grounds for the variation sought:

a) During the negotiations a claim was made by the employee bargaining representatives for flat dollar increases of $15.00 for Registered Nurses and $7.50 for Enrolled Nurses to be paid on 1 March 2016. This claim was not agreed to by the Applicant and did not form part of the final agreement between the parties.

b) The parties agreed to a 3.5% increase as reflected in the wage rates in Appendix A.

c) The flat dollar increases were included in the 1 March 2016 and 1 March 2017 wage rates table in addition to the 3.5% general increase in Appendix A by error.

[9] Leigh Hubbard, Senior Industrial Officer for the ANMF, provided documentation supporting the submission that the inclusion of the flat dollar increases into the Agreement were as a consequence of a drafting error and provided written consent to the variations sought.

[10] Scott Crawford, Industrial Manager for the HWU, provided written correspondence stating the flat dollar increases were not agreed to in bargaining and on this basis it is the view of the HWU the inclusion of the flat dollar increases in the Agreement are as a result of a drafting error. The HWU consent to the variation sought.

Decision

[11] Having regard to the material, the Commission accepts that there is an uncertainty or ambiguity of the kind envisaged by s.217 of the Act. Having made this finding it is appropriate that the Commission approve the variation to Appendix A, filed by the Applicant and contained in Attachment A to this decision, to rectify the uncertainty or ambiguity.

[12] The variation will operate from 20 July 2016.

[13]
The consolidated version of the Edith Bendall Lodge Inc., ANMF and HSU Enterprise Agreement 2014, as varied, is attached to this decision.

COMMISSIONER

Attachment A

 1   The HSU Victoria No. 1 Branch trades as the Health Workers Union.

Printed by authority of the Commonwealth Government Printer

<Price code O, AE408764  PR582386>