ISS Security Pty Ltd

[2014] FWCA 5700

[2014] FWCA 5700

FAIR WORK COMMISSION

DECISION

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

ISS Security Pty Ltd
(AG2014/1545)

ISS SECURITY PTY LTD AND UNITED VOICE SECURE FUTURE ENTERPRISE AGREEMENT 2012-2016

Security services
COMMISSIONER SPENCER	BRISBANE, 25 AUGUST 2014

Application for variation of the ISS Security Pty Ltd and United Voice Secure Future Enterprise Agreement 2012-2016.

Introduction

[1] This is an application pursuant to s.217 of the Fair Work Act 2009 (Cth) (the Act) filed by ISS Security (the Applicant) and is supported by United Voice (the Union).

[2] The Application seeks to vary the ISS Security Pty Ltd and United Voice Secure Future Enterprise Agreement 2012-2016 (the Agreement). The variation was negotiated between the Applicant and the Union to remove a drafting issue with respect to Level 1 Wages as well as to remove an ambiguity or uncertainty relating to Clause 20 of the Agreement. The variations sought are to replace the words ‘SCHEDULE A’ with ‘SCHEDULE B’ in clause 20 and replace the Level 1 Wages from the first full pay period on or after 1 July 2014 with the rates set out in Schedule 1, attached to this decision (Attachment A).

Relevant Legislation

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWA 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 FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

Consideration

[3] The principles to be applied when determining applications of this kind were discussed by the Full Bench in Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 [PR917548] 1 and summarised in the Decision of Fosterville Gold Mine Pty Ltd [2011] FWA 316 (Fosterville)2.

In Fosterville the principles were summarised as follows:  3

a. “The Tribunal should approach the matter by way of two stages. Firstly, as a jurisdictional pre-requisite, identify whether there is an uncertainty or ambiguity. Secondly, if an ambiguity or uncertainty has been identified, FWA has discretion whether or not to vary the agreement. Re Tenix Defence Systems Pty Ltd Certified Agreement 2001 - 2004 (Full Bench, 9 May 2002, PR917548) at [28], [32] & [35].

b. The first part of the process (ie identifying ambiguity or uncertainty) involves an objective assessment of the words used in the provisions under examination. The words used are construed having regard to their context. See Re Tenix at [29].

c. The Tribunal will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention. See Re Tenix at [31].

d. However, the Tribunal must make a positive finding that the agreement is uncertain or ambiguous. Being satisfied of ambiguity or uncertainty on a prima facie basis is not sufficient. See Colnvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [57].

e. It is not sufficient that there are rival contentions as to the proper construction of the terms of the agreement. Such contentions may be self serving. The Tribunal’s task is to mark an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. See Re Civil Construction Corporation Enterprise Agreement (Ross VP, 13 October 2002, PR939346); SJ Higgins v CFMEU (Williams SDP, 2 May 2001, PR903843); RE CFMEU Appeal (Full Bench, 25 February 1999, Print R2431).

f. In terms of the second stage of the process, once an ambiguity or uncertainty has been identified, in exercising the discretion of the Tribunal whether or not to vary the agreement, the Tribunal is to have regard to the mutual intention of the parties at the time the agreement was made. See Re Tenix at [32].”

The Commission as presently constituted adopts this approach.

[4] The Applicant set out the grounds for Orders sought as first, the reference to SCHEDULE A in clause 20 of the Agreement is incorrect, as Schedule A provides the classifications for the Agreement but does not deal with minimum wages, which are contained in Schedule B of the Agreement. Second, the parties to the Agreement agreed to three 4% wage increases effective from the first full pay period on or after 1 July 2012, 2013 and 2014, with a 3.5% increase in 2015. Third, the wage tables in Schedule B of the Agreement reflects the agreed wage increases, with the exception of Level 1 Wages for the first full pay period on or after 1 July 2014, on page 46 of the Agreement. Fourth, due to a drafting error, an incorrect figure of $19.32 was used to calculate each of the Level 1 rates for the first full pay period on or after 1 July 2014, instead of $19.14. Last, the error does not extend to any other rates in the Agreement, although it has the effect of reducing the Level 1 2015 increase by 1%.

[5] Mr Simon Ong, Industrial Officer of United Voice Queensland provided written consent to the variations sought.

[6] Having regarding to the material and making an objective assessment of the agreement as it was originally approved the Commission accepts that there is an uncertainty or ambiguity of the kind envisaged by s.217 of the Act. Having made this finding it is appropriate that the Commission approve the variation to rectify the uncertainty or ambiguity.

[7] The Commission in this matter is benefited by the Parties having reached agreement on the proposed variation in a way that adequately reflects their joint intentions at the time the agreement was originally made. The presence of this written consent is a relevant factor to the exercise of the power conferred by s.217.

[8] The variation in the terms sought by the Parties is approved. A consolidated version of the agreement, as varied, is attached to this decision. The variation to the Agreement will take effect from 25 August 2014.

COMMISSIONER

 1   Decision of Ross VP (as he then was), O’Callaghan SDP and Foggo C.

 2   Decision of Lewin C.

Fosterville Gold Mine Pty Ltd [2011] FWA 316 at [5]

Attachment A

 3  

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