Hevilift Australia (Fixed Wing) Pty Ltd T/A Hevilift

[2018] FWCA 1811

[2018] FWCA 1811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Hevilift Australia (Fixed Wing) Pty Ltd T/A Hevilift
(AG2018/669)

HEVILIFT AUSTRALIA (FIXED WING) ENTERPRISE AGREEMENT

Airline operations
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 28 MARCH 2018

Variation of the Hevilift Australia (Fixed Wing) Enterprise Agreement.

[1] On 27 February 2018, Hevilift Australia (Fixed Wing) Pty Ltd (Hevilift) applied to vary the Hevilift Australia (Fixed Wing) Enterprise Agreement (the Agreement) under s.217 of the Fair Work Act 2009 (the FW Act).

[2] Hevilift seeks to vary cl 4.3(a) of the Agreement, which currently reads:

‘4.3 Allowances

(a) Loss of Licence Allowance

All permanent employees will be paid an annual allowance of up to $5,000 to assist the employee to hold adequate insurance against loss of licence. The allowance will be paid on the first pay date after the employee provides Hevilift with proof of payment. The amount paid to the employee will be the lesser of the amount paid by the employee, as evidenced by the proof of payment, or the maximum allowance of $2,000.’

[3] Hevilift wishes to replace the reference to ‘$5,000’ with ‘$2,000’. It submits this proposed variation would give effect to the understanding and intention of the parties. Hevilift further submits that if the clause is not varied, it would be ‘capable of being interpreted in more than one way, and is inexact’.

[4] In support of its application, Hevilift filed an affidavit of Mr Jayabalan Gopalakrishnan, the Director of Human Resources and Administration for Hevilift’s parent company, Hevilift Corporate Pty Ltd. Mr Gopalakrishnan was responsible for the management of the bargaining process for the Agreement. His evidence is that the reference to ‘$5,000’ in cl 4.3(a) was an administrative error, and no employee sought a $5,000 allowance in the bargaining process.

[5] I directed the employees covered by the Agreement to advise my chambers by 26 March 2018 if any of them wished to be heard in relation to this application. No employee advised my chambers that he or she wished to be heard.

[6] I agree that that there is an ambiguity or uncertainty of the kind envisaged by s.217 of the FW Act. The first and last sentences of that clause contradict each other. If the Agreement remains ‘as is’, it will continue to be unclear whether the maximum allowance payable under cl 4.3(a) is $5,000 or $2,000. I accept Mr Gopalakrishnan’s evidence that the parties’ intention was always to have the maximum allowance payable be $2,000, not $5,000.

[7] Accordingly, I have decided to approve the variation to remove that ambiguity or uncertainty. An order giving effect to this will issue concurrently with this decision. The variation operates from today, 28 March 2018.

SENIOR DEPUTY PRESIDENT

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