Mercer Administration Services (Australia) Pty Ltd T/A Mercer

[2020] FWCA 2433

[2020] FWCA 2433

FAIR WORK COMMISSION

DECISION

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

Mercer Administration Services (Australia) Pty Ltd T/A Mercer
(AG2020/917)

MERCER ADMINISTRATION SERVICES ENTERPRISE AGREEMENT 2019

Banking finance and insurance industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 8 MAY 2020

Application to vary an agreement to remove an ambiguity or uncertainty – agreement varied – variation of the second table in Schedule B of the Agreement, titled "Classification Salary Ranges".

[1] An application was made on 30 March 2020 to vary the Mercer Administration Services Enterprise Agreement 2019 (the Agreement). 1 The application was made by Mercer Administration Services (Australia) Pty Ltd (the Applicant) pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary the Agreement, specifically the second table contained in Schedule B – “Classification Salary Ranges” to correct an ambiguity or uncertainty relating to the minimum weekly salary rates for a Year 1 Level 4 employees. This ambiguity or uncertainty arises as a result of inconsistency between the minimum and maximum annual and weekly pay rates for Year 1 Level 4 Employees contained in Schedule B of the Agreement.

[3] By way of background, the first table contained in Schedule B of the Agreement, “Annual Salary”, provides for minimum and maximum annual salary rates for the four classification levels. The second table in Schedule B outlines minimum and maximum weekly pay rates for the same classifications and is titled “Weekly Rate of Pay Derived from the Annual Salary Table Above (Annual Salary divided by 52)”. The formula for calculating the weekly rate of pay for the four classifications levels is done by taking the minimum or maximum rate in the Annual Salary Table and dividing it by 52.

[4] The Applicant submits that current minimum and maximum weekly rate displayed for Year 1 – Level 4 employees is the same, being $1,736.29 and this is where the ambiguity or uncertainty arises as the annual salary range specified in the Annual Salary Table is $71,969 (minimum) and $90,287 (maximum) and therefore the minimum weekly rate should be $1,384.02 and not $1,736 ($71,969 divided by 52 = $1,384.02).

[5] On 8 April 2020 the Fair Work Commission (the Commission) sent an email to the Community and Public Sector Union, the CPSU (the CPSU), which is covered by the Agreement), seeking its views regarding the application. The CPSU responded on 21 April 2020 advising the Commission that it agreed with the proposed variation “to remove any ambiguity or uncertainty within [the] Enterprise Agreement”.

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

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

(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;

(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.”

[7] In Sunfresh Health Pty Ltd 2 Deputy President Asbury noted as follows:

“[11] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement is enlivened under s.217 of the Act. There is no clear test for determining when an ambiguity exists but the Commission will generally err on the side of finding an ambiguity or uncertainty where rival contentions are advanced and there is an arguable case made out for more than one contention. However, the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning. Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will make a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.” 3 (Endnotes not included)

[8] I am satisfied that the minimum rate of pay for a Level 4 employee in Year 1 (1 April 2020) being inconsistent with the rate calculated in accordance with the formula set out in the heading of the table headed “Weekly Rate of Pay Derived from the Annual Salary Table Above (Annual Salary divided by 52)” and being the same as the maximum rate of pay for these employees creates an ambiguity and uncertainty as to the minimum rate of pay actually payable to these employees. As such, I am willing to exercise the discretion available to the Commission under s.217 of the Act to vary table two of Schedule B to delete the minimum weekly rate of pay $1,736.29 and replace it with $1,384.02 as sought by the Applicant. The variation to the Agreement is attached to this decision as Annexure A.

[9] A consolidated version of the Agreement which contains the variation will be published in conjunction with this decision. The variations operate from 9 May 2020.

<AE506910 PR719240

Annexure A:

 1   AE506910

 2   [2018] FWC 5807

 3   Ibid at [11]

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