Macquarie University

[2019] FWCA 3297

[2019] FWCA 3297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Macquarie University
(AG2019/1313)

MACQUARIE UNIVERSITY ACADEMIC STAFF ENTERPRISE AGREEMENT 2018

Educational services
DEPUTY PRESIDENT BOOTH	DARWIN, 17 MAY 2019

Application for variation of the Macquarie University Academic Staff Enterprise Agreement 2018 because of ambiguity or uncertainty; appropriate that uncertainty be removed; new provisions inserted; agreement varied.

[1] An application has been made by Macquarie University pursuant to s.217 of the Fair Work Act 2009 (Act) to vary the Macquarie University Academic Staff Enterprise Agreement 2018 (Agreement) to remove ambiguity and uncertainty.

[2] The National Tertiary Education Industry Union (NTEU) is covered by the agreement and supports the application.

[3] The application proposes a variation to the table contained in clause 45.14 of the Agreement to remove ambiguity arising from the omission of reference to a particular year within the continuous service scale under the retrenchment benefit provisions.

[4] Macquarie University submits that this creates uncertainty around the calculation of severance pay for staff who fall within the scale level of “3 years and less than 4 years” of continuous service as it is unclear how much, if any, severance benefit they would be entitled to under that table. Additionally, it submits that the severance pay for staff who fall within the scale level of “4 years and less than 5 years” service is incorrect, stating 15 weeks of severance pay instead of 18 weeks. Macquarie University submits that the intention of the parties negotiating the agreement was to retain the existing Continuous Service Scale where 3 years and less than 4 years of service is equivalent to 15 weeks’ severance pay and 4 years and less than 5 years is equivalent to 18 weeks’ severance pay.

[5] In order that the uncertainty is removed, Macquarie University proposes the following amendments.

[6] Firstly, it proposes that a new Row 4 of the table contained in clause 45.14 be inserted. In the ‘Length of Continuous Service’ column of the table it is proposed that the new Row 4 should read “3 years and less than 4 years service”. In the ‘Severance Pay’ column of the table it is proposed that the new Row 4 should read “15 weeks”.

[7] Secondly, it proposes that the ‘Severance Pay’ column of what would become the new Row 5 of the table in clause 45.14 should read “18 weeks”.

[8] The NTEU gave its consent in writing to the present application for variation on 5 and 9 April 2019 respectively. Macquarie University and the NTEU consented to the application being determined on the papers without the need for a hearing.

[9] Section 217 of the Act provides:

Variation of an enterprise agreement to remove ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement 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.

[10] The principles that are to be applied in considering whether the Commission should exercise its discretion to grant an application under s.217 include identification of an uncertainty or ambiguity, then, where an ambiguity or uncertainty is identified, whether the Commission should exercise its discretion to grant the proposed variation, having regard to the mutual intention of the parties at the time the agreement was made. 1

[11] I am satisfied that at the time the Agreement was made, Macquarie University and the NTEU intended that the table should include a scale level of “3 years and less than 4 years” and that that scale level should be entitled severance pay of 15 weeks.

[12] I am also satisfied that the unintentional omission of the scale level of “3 years and less than 4 years” has erroneously caused the scale level of “4 years and less than 5 years” to attract an entitlement of 15 weeks’ severance pay rather than 18 weeks’ severance pay as intended by the parties to the Agreement at the time it was made.

[13] I am satisfied that I should amend the Agreement to remove the uncertainty and that it is appropriate to do so in the manner proposed by Macquarie University and outlined at paragraphs [6] – [7] above.

[14] The application is granted and a variation order is issued separately in PR708266.

DEPUTY PRESIDENT

 1   For a summary of all principles to be considered, see the decision by Deputy President Gostencnik in Bradnam’s Windows & Doors Pty Ltd (Dandenong South Manufacturing) and Australian Workers; Union Enterprise Agreement 2018[2019] FWCA 979 at [11].

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