Electro Industry Group Queensland Limited T/A Electro Group Apprentices

[2021] FWCA 4787

[2021] FWCA 4787

FAIR WORK COMMISSION

DECISION

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

Electro Industry Group Queensland Limited T/A Electro Group Apprentices
(AG2021/6468)

ELECTRO INDUSTRY GROUP QUEENSLAND LTD APPRENTICE/TRAINEE ENTERPRISE AGREEMENT 2020 - 2023.

Electrical contracting industry
COMMISSIONER SPENCER	BRISBANE, 5 AUGUST 2021

Application for variation of the Electro Industry Group Queensland Ltd Apprentice/Trainee Enterprise Agreement 2020 - 2023.

[1] An application has been made by the Electro Industry Group Queensland Limited T/A Electro Group Apprentices(the Applicant) pursuant to s.217(1) of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty in various clauses of the Electro Industry Group Queensland Ltd Apprentice/Trainee Enterprise Agreement 2020 - 2023 (the Agreement). The Agreement was approved by the Commission in a Decision issued on 28 August 2020. 1 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) is a bargaining representative for the Agreement and is covered by the Agreement.

[2] The Applicant submitted that the wording in the Agreement did not accurately reflect the agreement reached between the parties.

[3] The Applicant is seeking that the Commission vary the Electro Industry Group Queensland Ltd Apprentice/ Trainee Enterprise Agreement 2020-2023 as follows:

(a) By deleting clause 4.1 (Wage Rates) and inserting the following in lieu thereof:

"4.1 WAGE RATES

The all-purpose wage rate and allowances are in accordance with the Electrical, Electronic and Communications Contracting Award 2010 (the "modern award") as updated from time to time."

(b) By deleting clause 4.3 (Allowances) and inserting the following in lieu thereof:

"4.3 ALLOWANCES & OTHER ENTITLEMENTS

Provision of tools will be as per Appendix 5.

Allowances/entitlements for working on distant worksites

a) Working away from Home - when an employee is required to work at a distant site where return home at the end of the workday is not feasible the employer must provide reasonable board and lodging. In the case of broken parts of a week occurring at the beginning or end of a period of distant work the allowance will be all living expenses, actually and reasonably incurred. The employer will provide all meals or a meal allowance of $65.00 per day.

b) Standard of board and lodging-reasonable board and lodging for the purpose of this clause will mean lodging in a well kept establishment with adequate furnishing, good bedding, good floor coverings, good lighting and heating in either a single room or a twin room (for one employee) if a single room is not available, with hot and cold running water. All other Allowances will be paid as per the Award."

(c) By deleting the title of Appendix 5 Tool Allowance/Provision of Tools and inserting the following in lieu thereof:

"PROVISION OF TOOLS"

(d) By deleting the words in the first paragraph of Appendix 5 and inserting the following in lieu thereof:

"The employer will provide to each apprentice tools to the wholesale value of $450 for each year of their apprenticeship.

The tools will be provided no later than the third month of each year of their apprenticeship. An apprentice may choose tools to be provided from the following list of tools.

Where an apprentice has purchased their own tools, and it is agreed between the employer and the apprentice that those tools are relevant to the work performed by the apprentice, the employer will, on production of the relevant receipts, reimburse the apprentice up to a value of $450 per year."

RELEVANT LEGISLATION

[4] 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

[5] Any 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 exists,3 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

[6] On the basis of the material before me I am satisfied that that there is an ambiguity on the basis that Clause 4.1, Clause 4.3 and Appendix 5 of the approved Agreement, do not represent the intentions of the parties and what was agreed between the parties during negotiations.

[7] 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 ETU, which has been consulted and has confirmed it consents to the proposed variation.

CONCLUSION

[8] 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.

[9] The variations will operate from 5 August 2021. A consolidated version of the Agreement as varied is attached to this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE508867  PR732511>

 1   [2020] FWCA 4569.

 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].