Moorabool Shire Council

[2014] FWCA 2273

[2014] FWCA 2273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Moorabool Shire Council
(AG2014/3698)

MOORABOOL SHIRE COUNCIL ENTERPRISE AGREEMENT NO. 7 2013

Local government administration
COMMISSIONER BISSETT	MELBOURNE, 8 APRIL 2014

Application for variation of the Moorabool Shire Council Enterprise Agreement No. 7 2013.

[1] Moorabool Shire Council has made an application to vary the Moorabool Shire Council Enterprise Agreement No. 7 2013 (2013 Agreement) pursuant to s.217 of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty it says exists in the Agreement.

[2] The application seeks to vary clause 7.3 ‘Rates of Pay - Nurses’ to correct a typographical error in the rates of pay that it says, if not corrected, will result in uncertainty.

[3] The Agreement covers the Australian Municipal, Administrative, Clerical and Services Union, the Australian Nursing and Midwifery Federation and The Association of Professional Engineers, Scientists and Managers, Australia.

[4] The Australian Nursing and Midwifery Federation have indicated that they do not oppose the variation sought by Moorabool Shire Council.

[5] Section 217 of the Act provides:

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.

[6] In Tenix Defence Systems Pty Limited 1 (Tenix) the Full Bench of the Australian Industrial Relations Commission outlined the proper approach to be taken when determining an application pursuant to s.170MD(6) of the Workplace Relations Act 1996 and held that:

Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997:

"The identification of whether or not a provision in an instrument can be said to contain an `ambiguity' requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the `parent' award with which a complimentary provision is to be read."

We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.

The Commission 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.

Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made. [Footnotes removed]

[7] Section 217 of the Act is, relevantly, in the same terms as s.170MD(6). The approach taken by the Full Bench in Tenix has been applied consistently by the Fair Work Commission in determining applications under s.217 of the Act. I have adopted the approach of the Full Bench in Tenix in considering this application.

Is there ambiguity or uncertainty?

[8] The commencement date of the 2013 Agreement is 25 December 2013.² Clause 7.3 of the 2013 Agreement sets out the rates of pay for nurses. The first column of the table shows the rates of pay at the commencement of the 2013 Agreement with subsequent columns showing the rates of pay to apply on subsequent dates.

[9] Clause 5.1 of the 2013 Agreement states that increases of $35 per week or 3.5%, whichever is the greater, shall apply from 1 July 2013, 1 July 2014, 1 July 2015 and 1 July 2016.

[10] The Moorabool Shire Council Enterprise Agreement No. 6 2010 (2010 Agreement), 3 at Appendix 2, shows the rates of pay for nurses at the expiration of that agreement. The final rates of pay in the 2010 Agreement should be reflected in the rates of pay at the time of commencement of the 2013 Agreement and prior to the first increase on 1 July 2013. They are not. The rates of pay in column 1 of clause 7.3 are not the correct rates of pay but are the rates of pay at the commencement of the Agreement plus 3.5%. This inflation of the rates of pay then continues through the table.

[11] Moorabool Shire Council submits that in all communications with employees during the negotiations and at the time of approval of the 2013 Agreement employees were informed that the first increase was payable from 1 July 2013 and, on approval of the 2013 Agreement, that increase would be made and backdated.

[12] Employees and the ANMF have been apprised of the error in the 2013 Agreement from the time of its discovery and are aware of the variation sought. No objection is raised.

[13] I am satisfied that the rates of pay set out in the 2013 Agreement at clause 7.3 creates ambiguity and uncertainty as employees may be confused as to the correct rate of pay under the 2013 Agreement. I am satisfied that clause 7.3 does not reflect advice given to employees at the time the 2013 Agreement was made. I am also satisfied that employees are being paid the correct rate of pay and it is the content of the 2013 Agreement which creates the ambiguity and uncertainly.

[14] I therefore grant the application. The 2013 Agreement shall be varied by deleting the existing table at clause 7.3 and replacing it with:

CLASSIFICATION	SALARY $* (weekly rate)
Rate at Commencement of Agreement	First Increment (date – 1st full pay in July 2013)	Second Increment (date – 1st full pay in July 2014)	Third Increment (date – 1st full pay in July 2015)	Fourth Increment (date – 1st full pay in July 2016)
Maternal and child health nurse 1st year of experience	1,531.31	1,584.91	1,640.38	1,697.79	1,757.21
Maternal and child health nurse 2nd year of experience	1,567.95	1,622.83	1,679.63	1,738.41	1,799.26
Immunisation nurse (in charge) as defined in clause 9 of the award	1,200.93	1,242.96	1,286.47	1,331.49	1,378.09
Immunisation nurse in charge	1,424.03	1,473.87	1,525.46	1,578.85	1,634.11

[15] The variation shall operate from the operative date of the Agreement being 25 December 2013.

[16] A copy of the Agreement as varied is attached to this decision.

COMMISSIONER

 1   PR917548 (unreported, Ross VP, O’Callaghan SDP, Foggo C, 9 May 2002).

2 [2013] FWC 9959 (unreported, Bissett C, 18 December 2013).

 3   AE883126.

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