National Tertiary Education Union v Chisholm Institute of TAFE

[2013] FWC 1791

[2013] FWC 1791

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

National Tertiary Education Union
v
Chisholm Institute of TAFE
(AG2012/13019)

CHISHOLM INSTITUTE OF TAFE PROFESSIONAL STAFF ENTERPRISE AGREEMENT 2011-2014
ODN AG2012/7738)  [AE896921]

Educational services
DEPUTY PRESIDENT SMITH	MELBOURNE, 22 MARCH 2013

Removing ambiguity or uncertainty in the agreement.

[1] The following decision, now edited, was issued during proceedings conducted on 18 March 2013.

[2] This is an application pursuant to s.217 of the Fair Work Act 2009 (the Act) for a variation to the Chisholm Institute of TAFE Professional Staff Enterprise Agreement 2011—2014 [AE896921] to remove what is said to be ambiguity and uncertainty.

[3] The application is made by the National Tertiary Education Union (NTEU). It is submitted by the NTEU that a number of rates referable to shift work, annual leave loading and overtime were incorrectly described in the agreement. Ms Maloney took the Commission to the agreement, the underpinning award and the variations which applied to those awards to demonstrate the correct relationship that should apply between the wage levels and those relevant exemption rates.

[4] A review of the earlier awards in the agreement leads me to conclude that both an ambiguity and uncertainty does exist. The clauses could have more than one meaning and they do create uncertainty for employees in understanding clearly the obligations that arise under the agreement. The employer adopts and supports the submissions of the NTEU.

[5] I will issue an order in the terms put forward in Exhibit NTEU1.

[6] The order will operate from 21 September 2012 as this is the date that the agreement commenced.

DEPUTY PRESIDENT

Appearances:

M. Maloney with J. Burke for the National Tertiary Education Union.

P. Leary on behalf of the Chisholm Institute of TAFE.

Hearing details:

2013.

Melbourne:

March, 18.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE896921  PR535072>