O'Donnell Griffin Pty Ltd

[2013] FWCA 4238

[2013] FWCA 4238

FAIR WORK COMMISSION

DECISION

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

O'Donnell Griffin Pty Ltd
(AG2013/6632)

COMMISSIONER BULL SYDNEY, 24 JULY 2013

Application for variation of agreement to remove an ambiguity or uncertainty - s.602 correcting obvious errors - Agreement error corrected on Commission’s initiative.

[1] On 20 May 2013, O’Donnell Griffin Pty Ltd (the Applicant) made application pursuant to s.210 of the Fair Work Act 2009 (the Act) to vary the O’Donnell Griffin Pty Ltd Communications Division (ACT) Enterprise Agreement 2012 - 2015 (the Communications Agreement). The application was deficient in that no vote of employees was undertaken as required by s.211(3) of the Fair Work Act 2009 (the Act). Following discussions with the Commission the application was discontinued 24 May 2013.

[2] On the same day a further application pursuant to s.217 of the Act for the Commission to vary the Communications Agreement to remove an ambiguity or uncertainty was lodged by the Applicant. Section 217 is in the following terms:

“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.”

[3] The Commission initially convened a conference for 14 June 2013, to discuss the application. This conference was cancelled due to the unavailability of the employee bargaining representative to the Agreement, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Division) (CEPU).

[4] A further conference was convened on 27 June 2013, where the Applicant and the CEPU attended. It was explained by the Applicant and the CEPU that the Communications Agreement at clause 13 - Rostered Days Off contained wording that did not reflect the intent and current practice of the Applicant and its workforce covered by the Communications Agreement. The Communications Agreement provides for a nine day fortnight whereas the practice and intent is a 19 day month. The Applicant confirmed this understanding in correspondence to the Commission dated 8 July 2013. The CEPU confirmed its support with respect to the Applicant’s correspondence on 19 July 2013.

[5] The incorrect wording is said by the Applicant to have arisen from negotiating two enterprise agreements simultaneously. The second agreement was the O’Donnell Griffin Pty Ltd (ACT Installations) Enterprise Agreement 2012-2015 (the Installation Agreement) which was approved by the Commission on 12 April 2013. The Installation Agreement also at clause 13 Rostered Days Off provides for the accrual and taking of rostered days off. The entitlement is for employees to work a 10 day cycle with 8 hours worked for 9 days with 0.8 of an hour for each day worked accruing towards a paid rostered day off each 10 day cycle. 1

[6] The Communications Agreement provides at clause 12 - Hours of Work & Meal Breaks that the hours worked are 38 per week averaged over a four week period. The practice and intent of the parties is said to be an entitlement of one rostered day off per month over a 20 day cycle with 8 hours worked for 19 days with 0.4 of an hour accruing on each of those 19 days for a paid rostered day off in each 20 day rostered cycle of 7.6 hours.

[7] There are numerous decisions concerning the meaning of an ambiguity or uncertainty in a document. See for example Re Victorian Public Transport Enterprise Agreement 1994 (Re Victorian) 2, Re Construction, Forestry, Mining and Energy Union (Re CFMEU)3, Corporation of the City of Enfield v Development Assessment Commission4, Telstra v CPSU5, Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-20046, Construction, Forestry, Mining and Energy Union v SCA Hygiene Australasia Pty Limited7, Short v FW Hercus Pty Ltd8.

[8] The decision of Beltana Highwall Mining Pty Ltd 9concerned an application to remove an ambiguity or uncertainty pursuant to s.170MD(6) of the Workplace Relations Act 1996. Senior Deputy President Marsh discerned from the existing authorities some guidance on the principles to be applied:

“[23] The following guidance can be discerned from cases which have dealt with s.170MD(6) applications:

• before exercising its discretion to vary an agreement pursuant to s.170MD(6)(a) the Commission must first identify the ambiguity or uncertainty;



• the Commission may then exercise the discretion to remove the ambiguity or uncertainty by varying the agreement;



• the first step i.e. identification of an ambiguity or uncertainty requires the determination of a “jurisdictional fact”;



• the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning;



• the words used in the provision are construed in their context including where appropriate the relevant parts of the parent award with which a complementary provision is to be read;



• s.170MD(6)(a) is not confined to the identification of which words of a clause 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;



• the Commission’s task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are “self serving”;



• the second step in the process is the exercise of discretion as to whether or not an agreement should be varied to remove the ambiguity or uncertainty;



• the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made (Print Q2603 at para.29);



• the Commission is to have regard to the mutual intention of the parties at the time the agreement was made and subsequent conduct of the parties;



• the Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made. The Commission is not limited by the form of the application before it;



• in looking at the context of a provision the Commission is entitled to consider:

the effect of a prefatory statement made by the parties at the time when it was introduced into the award;

the circumstances of the origin and use of the clause;

the time when and the circumstances under which the instrument is made;

the entire document of which the contentious provision is part or other documents with which there is an association;

ideas that give rise to an expression in a document.

[24] In summary, the task is to make an objective judgment as to whether the wording of a provision(s) is susceptible to more than one meaning. If that judgment is in the affirmative then the Commission may exercise its discretion to decide 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.”

(References removed)

[9] There does not appear to be anything ambiguous or uncertain about the existing wording of clause 13 of the Agreement.

[10] It provides for the accrual and taking of two rostered days off per month. The provision does not appear inconsistent with other clauses of the Communications Agreement.

[11] Clause 12 - Hours of Work & Meal Breaks refers to working an average of 38 hours over a four week period and clause sub clause 14.3 - Hours - other than continuous work allows the 38 hour week to be worked over a one, two, three or four week cycle.

[12] The wording as such does not lend itself to being ambiguous but on the submissions of the Applicant and the CEPU has been inserted in error.

[13] The contentions of the Applicant and the CEPU was that it was not the understanding of the Applicant or employees when negotiating and voting on the Agreement that the rostered day off would be taken on the basis of one day off each fortnight. There is no controversy between the parties that this is not what was intended. The rostered day off provisions should reflect a day off each 20 day working cycle.

[14] While the Applicant or the CEPU have not referred to the Commission’s ability to correct obvious errors in decisions of the Commission this is my view as to what is essentially sought. Where an obvious error in relation to a Commission decision exists the Commission is authorised under s.602 to correct the error:

“602 Correcting obvious errors etc. in relation to FWC’s decisions

(1) FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If FWC makes a decision to make an instrument, FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) FWC may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.”

[15] Whilst a formal application is not before Commission, as can be seen from s.602(2)(b) the Commission is able to act under s.602 on its own initiative.

[16] In the Full Bench decision of RotoMetrics Australia Pty Ltd T/A RotoMetrics v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and others 10 drawing from previous authorities the application of s.602 was explained by the Full Bench as follows:

“Section 602 is intended to be a statutory analogue of the “slip rule” used by superior courts to correct certain errors in orders. 11 It must be applied with caution12 and only in circumstances in which the use of the “slip rule” is permissible:13

○ “where there has been an unintentional omission in an Order or judgement of the Court 14;

○ where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings 15;

○ where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy 16; and

○ where the error is manifestly clear; where an “officious bystander would reply when asked if the amendment was appropriate: ‘Of course’” 17.

[17] I am satisfied that the references in clause 13 - Rostered Days Off referring to a 9 day fortnight is the result of a drafting error in a legal instrument due to inadvertence, mistake, accident or clerical error.

[18] Before concluding that a Correction Order should be issued pursuant to the slip and error rule, it is appropriate to consider whether the variation should have retrospective operation. The parties submitted that the correction should operate from the date of operation of the Communication Agreement. I can see no reason why this should not occur and will order that the correction operate from this date.

[19] The Communications Agreement will be amended in terms of the attached Order (PR539235) to operate retrospectively from the date of operation of the Communication Agreement being 19 April 2013.

COMMISSIONER

 1   This agreement provides for a 36 hour week and provides for 7.2 hours paid time to accrue for each nine days worked.

 2   Print M2454

 3   Print R2431

 4 199 CLR 135

 5   PR954989

 6   PR917548

 7   [2012] FWAFB 9505

 8 [1993] FCA 51

 9   PR932468

 10   [2011] FWAFB 7214

 11   Explanatory Memorandum, House of Representatives, Fair Work Bill 2008, at paragraph 2316]

 12   Gould v Vaggelas (1985) 157 CLR 271, at 275; Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1830 at 17 and Re Timber and Allied Industries Award 1999, PR937647, at para 35

 13   See Re Timber and Allied Industries Award 1999, PR937647, at paragraph 29-35

 14   Arnett v Holloway [1960] VR 22

 15   L Shaddock op cit.; Gould v Vaggelas op cit., at paragraph 9

 16   Elyard op cit., at paragraph 22

 17   Currabubula op cit., at paragraph 51

Printed by authority of the Commonwealth Government Printer

<Price code C, PR538372>