Health Services Union

[2018] FWCA 7627

[2018] FWCA 7627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Health Services Union

(AG2018/6802)

DISABILITY SERVICES ENTERPRISE AGREEMENT VICTORIA 2018-2022

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 17 DECEMBER 2018

Application for variation of the Disability Services Enterprise Agreement Victoria 2018 - 2022 - clause 27.3 and model consultation clause.

1. This matter is an application by the Health Services Union (HSU), under section 217 of the Fair Work Act 2009 (the Act), to vary the Disability Services Enterprise Agreement Victoria 2018 – 2022[1] (the Agreement) in order to remove an ambiguity or an uncertainty.

1. The application is a consent application between the HSU and The State of Victoria T/A The Department of Health and Human Services (the employer, DHHS).

1. Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty 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.”

1. An ambiguity or uncertainty has arisen in relation to clause 27.3 of the Agreement and the HSU seeks to both vary clause 27.3 and remove the model consultation clause which is attached at the end of the Agreement.  Specifically, in relation to clause 27.3, the HSU seeks to insert the words “invite employees and HACSU and/or another representative to give their views about the impact of the change and will” into the second sentence of clause 27.3 after the words “The Employer will”.

1. On the basis of the material before me, I am satisfied that there is the ambiguity or uncertainty as submitted by the HSU and as agreed by DHHS.

1. Accordingly, the application is granted and the variations, as sought, will operate from 17 December 2018.

[1] AE500582

Printed by authority of the Commonwealth Government Printer

<AE500582  PR703195>