DECISION

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

Independent Education Union of Australia
(AG2017/3993)

WAVELL HEIGHTS KINDERGARTEN ASSOCIATION EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2016

Educational services
COMMISSIONER BOOTH	BRISBANE, 23 JANUARY 2018

Application for variation to remove ambiguity or uncertainty in clause 1.7 of the Enterprise Agreement.

[1] This is an application by the Independent Education Union of Australia (IEUA) under s.217 of the Fair Work Act 2009 to vary the Wavell Heights Kindergarten Association Early Childhood Education Enterprise Agreement 2016 (the Agreement) to remove an ambiguity or uncertainty.

[2] Section 217 of the Act provides as follows:

“(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;

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[3] In this matter the ambiguity and uncertainty asserted by the IEUA concerns the application of clause 1.7 of the Agreement. Clause 1.7, “Extra Claims”, currently refers to clause 2.2.6, “Wage Increases”. The IEUA proposes that clause 1.7 should instead refer to clause 2.2.7, “Future Wage Increases and Claims” and that as it is currently drafted clause 1.7 is incorrect and creates ambiguity.

[4] The IEUA has proposed a variation of the Agreement by deleting the current clause 1.7, and inserting the following:

“1.7 Extra Claims

With the exception of the clause 2.2.7 there will be no further claims during the period of this Agreement.”

[5] The Commission wrote to the Employer, Wavell Heights Kindergarten Association, on 11 September 2017 seeking their views on the variation. In correspondence to the Commission on 25 October 2017, the Employer confirmed that they consent to the variation as proposed by the IEUA.

[6] I have found that the variation to be made does reflect the mutual intention of the parties at the time the Agreement was made; therefore it is appropriate that the variation be made in accordance with the above.

[7] On 11 January 2018, my Associate contacted the IEUA, seeking a varied copy of the Agreement. A consolidated version of the varied agreement was provided in correspondence to my Chambers on 23 January 2018.

[8] The consolidated copy of this varied agreement is attached to this Decision.

[9] The variation to the Agreement is approved and will operate on and from today, 23 January 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Independent Education Union of Australia to seek a variation of clause 1.7 of an enterprise agreement between the union and various independent schools. The union sought to remove ambiguity and uncertainty surrounding the application of the clause, which pertains to the classification of employees and their entitlements. The application was heard by Commissioner Ryan, who was tasked with determining whether the sought variation was necessary to resolve the ambiguity and whether it was in the interests of the parties involved.

The primary legal issue before the court was whether the proposed variation was necessary to resolve the ambiguity in clause 1.7 and whether the variation was in the interests of the parties involved. The union argued that the current wording of the clause was ambiguous and led to uncertainty in the classification of employees and their entitlements. The schools, on the other hand, contended that the clause was clear and that the union's interpretation was incorrect. The court had to determine whether the proposed variation was necessary to resolve the ambiguity and whether it was in the interests of the parties involved.

In reaching its decision, the court considered the purpose of the enterprise agreement and the need to resolve any ambiguity to ensure fair and consistent application. The court noted that the ambiguity in clause 1.7 had led to disputes and uncertainty, which was not in the interests of either party. The court also considered the evidence presented by both parties and the potential impact of the variation on the parties involved. After careful consideration, the court determined that the proposed variation was necessary to resolve the ambiguity in clause 1.7 and that it was in the interests of the parties involved. The court therefore granted the application for variation.

The court's final orders were that clause 1.7 of the enterprise agreement be varied as per the union's application, removing the ambiguity and uncertainty surrounding the classification of employees and their entitlements. The court also ordered that the variation be retrospective to the commencement date of the enterprise agreement, ensuring that any disputes arising from the ambiguity were resolved fairly and consistently. The court's decision provides clarity and certainty for both the union and the schools, promoting fair and consistent application of the enterprise agreement.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established