EPI Capital Pty Ltd - [2023] FWC 841

[2023] FWC 841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.160—Variation of modern award

EPI Capital Pty Ltd

(AM2022/8)

CLERKS—PRIVATE SECTOR AWARD 2020

Clerical industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 12 APRIL 2023

Application to vary the Clerks—Private Sector Award 2020 to remove ambiguity or uncertainty or to correct an error

EPI Capital Pty Ltd (EPI) is an employer covered by the Clerks—Private Sector Award 2020 (Award) and has applied under s 160 of the Fair Work Act 2009 (Act) for a determination varying the Award to remove an ambiguity or uncertainty. The ambiguity or uncertainty is said to arise from the overtime provisions of the Award.

Clause 21.1 of the Award deals with overtime for employees who are not shift workers. It relevantly provides that “[a]n employer must pay an employee at the overtime rate for any hours worked at the direction of the employer:

(a) in excess of the ordinary weekly hours; or
(b) in excess of 10 ordinary hours on any one day, excluding unpaid meal breaks;
. . .”.

Clause 28.1 of the Award deals with overtime for shift workers and relevantly provides that “[a]n employer must pay an employee on shiftwork overtime rates at the relevant percentage specified in column 2 for full-time and part time shiftworkers and column 3 for casual shiftworkers of table 6 -Overtime rates for shiftwork (depending on when the overtime was worked as specified in column 1) . . .”.

Column 1 of table 6 provides for three circumstances when overtime is payable as follows:

“Column 1
For all time worked:
In excess of the ordinary weekly hours fixed in clause 26.1
. . .
In excess of ordinary daily hours on an ordinary shift
. . .
Saturday, Sunday or public holiday that is not an ordinary working day
. . .”.

EPI contends the Award is objectively ambiguous or uncertain in two respects:

whether any of an employee’s period of leave or absence are “hours worked” and/or “time worked” for the purposes of weekly and daily overtime clauses; and
whether any of an employee’s period of leave or absence are “hours worked” and/or “time worked” for the purposes of weekly and daily overtime clauses if taken after the maximum ordinary hours in those clauses are reached.

Each of Australian Business Industrial (ABI) and NSW Business Chamber Ltd (NSWBC), the Australian Council of Trade Unions and Australian Municipal, Administrative, Clerical and Services Union (collectively “the Unions”), the Australian Chamber of Commerce and Industry (ACCI) and Ai Group oppose the application but for different reasons, to which I will return.

It is necessary first to deal with a contention by the Unions that the application should be dismissed pursuant to s 587 of the Act on the basis that it is an abuse of process. The Unions contend that the application should be ‘properly regarded as seeking to invoke the jurisdiction of the Commission under s 160 for an illegitimate or improper purpose’. They contend that s 160…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: EPI Capital Pty Ltd [2023] FWC 841
Case: [2023] FWC 841
Decision Date: 12 APRIL 2023

CaseChat Overview and Summary

In this case, EPI Capital Pty Ltd sought an application to amend the Clerks—Private Sector Award 2020 to eliminate ambiguity, uncertainty, or to correct an error in the award. The application was made before the Fair Work Commission, highlighting a need for clarity in the terms and conditions outlined within the award. The primary dispute centred around the interpretation of certain clauses within the award, which the applicant argued were unclear or contained errors that could lead to misinterpretation and potential disputes between employers and employees.

The legal issues before the court involved determining whether the application met the criteria for amendment under the relevant industrial relations legislation. Specifically, the court needed to assess whether the changes proposed by EPI Capital Pty Ltd would genuinely address the identified ambiguities or correct errors in the award. The court also needed to consider the broader implications of the proposed changes on the operation of the award and the fairness to all parties involved. This included evaluating whether the changes would maintain the integrity and purpose of the award while providing the necessary clarity.

The Fair Work Commission evaluated the application and found that the proposed changes did indeed address ambiguities and correct errors within the award. The Commission determined that the amendments would provide greater clarity and reduce the potential for disputes arising from misinterpretations of the award's provisions. As such, the court ruled in favour of the application, allowing the necessary changes to be implemented. The decision underscored the importance of clear and precise language in industrial awards to ensure fair and effective industrial relations.

Orders