Maritime Union of Australia, Australian Institute of Marine and Power Engineers, Australian Maritime Officers' Union v DMS Maritime Pty Ltd
[2012] FWA 5540
•28 JUNE 2012
[2012] FWA 5540 |
|
DECISION |
Fair Work Act 2009
s 217 - Application to vary an agreement to remove an ambiguity or uncertainty
Maritime Union of Australia, Australian Institute of Marine and Power Engineers, Australian Maritime Officers' Union
v
DMS Maritime Pty Ltd
(AG2012/8831)
Maritime industry | |
DEPUTY PRESIDENT SAMS | SYDNEY, 28 JUNE 2012 |
Application by Maritime Union of Australia, Australian Institute of Marine and Power Engineers and Maritime Officers’ Union to vary an agreement to remove an ambiguity or uncertainty.
[1] This joint application, pursuant to s 217 of the Fair Work Act 2009 (‘the Act’) filed by the Maritime Union of Australia (MUA), Australian Institute of Marine and Power Engineers (AIMPE) and Maritime Officers’ Union (MOU)(‘the Unions’) arises from dispute proceedings before me and conciliation on several occasions in matter C2012/354 - the last occasion being 28 May 2012 when an agreement was reached. The dispute concerned the calculation of the Seagoing Allowance payable to a crew member who remains at sea overnight in accordance with cl 15.1.2.1(d) of the DMS Maritime Collective Agreement 2011 (‘the Agreement’).
[2] From my knowledge of the earlier proceedings and involvement in private conferences with the Unions and the employer, DMS Maritime Pty Ltd, there is little doubt that the existing clause in the Agreement is ambiguous and uncertain. In the result, the parties have resolved their dispute and have agreed on the wording of a replacement clause to cl.15.1.2.1(d) so as to remove any uncertainty or ambiguity. Hence the application now before the Tribunal. The proposed clause is as follows:
‘In addition to the TIL: accrual detailed above, a crew member who remains at sea overnight will receive payment of a Seagoing Allowance. The Seagoing Allowance will be calculated by dividing the number of hours (or part thereof) actually worked by four (4) and multiplying the result by the hourly rate of pay of the crew member. In addition, Superannuation will be paid on the Seagoing Allowance. The Allowance will commence operation from 1 January 2012.’
[3] Section 217 of the Act is the vehicle by which FWA may vary an enterprise agreement to remove an ambiguity or uncertainty. It reads as follows:
‘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.
FWA may deal with certain disputes about variations
(1) This section applies if a variation of an enterprise agreement is proposed.
(2) An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to FWA for FWA to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.
(3) FWA must not arbitrate (however described) the dispute.’
[4] At a hearing of the application on 27 June 2012, Mr L Edmonds, for the MUA, identified the principles to be applied by the Tribunal when determining applications of this kind, by reference to the lead Full Bench authority in Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 [PR917548] and the principles derived there from applied by Lewin C in Fosterville Gold Mine Pty Ltd [2011] FWA 316. There, the Commissioner summarised the principles as follows:
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 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].’
[5] I intend to apply those principles to the instant application before me. However, this is not a contested application and the joint Unions’ application was supported by Mr M Diamond, Solicitor, appearing with permission, for DMS Marine Pty Ltd. I also note that Mr Fallone for the AIMPE, confirmed that the employer has applied the agreed clause, from 1 January 2012.
[6] The Tribunal appreciates the consent of the parties to the Agreement. It is obviously a relevant factor in my determination of the application. I am satisfied that there is an ambiguity or uncertainty with the wording of cl 15.1.2.1(d) in the Agreement and I propose to remove that ambiguity or uncertainty by varying the Agreement as sought by the parties in para 4 above.
[7] The variation to the Agreement shall take affect from 1 January 2012. Orders [PR525723] to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J Fallone for AIMPE
Mr L Edmonds for MUA, WA Branch
Mr M Diamond, Solicitor, for the respondent
Hearing details:
Sydney
2012
27 June
Printed by authority of the Commonwealth Government Printer
<Price code C, AE887345 PR525743>
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