Qube Logistics (SB) Pty Ltd T/A Qube Logistics

[2021] FWCA 2785

[2021] FWCA 2785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Qube Logistics (SB) Pty Ltd T/A Qube Logistics
(AG2021/5035)

QUBE LOGISTICS PACKTAINERS ENTERPRISE AGREEMENT 2020

Storage services
DEPUTY PRESIDENT ASBURY	BRISBANE, 14 MAY 2021

Application for variation of the Qube Logistics Packtainers Enterprise Agreement 2020.

[1] Qube Logistics (SB) Pty Ltd T/A Qube Logistics (Qube Logistics) has made an application under s 217(1) of the Fair Work Act 2009 (Cth) (Act) to remove an ambiguity or uncertainty in clause 1.1 of Part B of the Qube Logistics Packtainers Enterprise Agreement 2020 (the Agreement). The Agreement was approved by the Commission in a Decision 1 issued on 14 May 2021. The United Workers Union (UWU) is a bargaining representative for the Agreement and is covered by the Agreement.

[2] The ambiguity or uncertainty is said to be found in clause 1.1 of Part B of the Agreement, which concerns the wage rates for Storeworkers grades 1 – 4. Clause 1.1 of the Agreement contains a table setting out the weekly wages for Storeworkers and clause 1.2 of Part B of the Agreement contains a table setting out the wages expressed as hourly rates.

[3] During the course of seeking approval of the Agreement, an inconsistency was identified between the weekly rates set out at clause 1.1 and the hourly rates set out at clause 1.2. In response to this issue, Qube Logistics identified that there was an error in the calculation of the weekly figures contained in clause 1.1 of Part B, in that the weekly rates do not equal the hourly rates multiplied by 38 ordinary hours. Qube Logistics and the UWU agree that the hourly rates contained in clause 1.2 which were used to calculate the weekly wages, are the correct agreed rates, and that there is only an error in the calculation of the wages expressed as a weekly amount.

[4] Qube Logistics contends that an ambiguity is created due to this inconsistency.

RELEVANT LEGISLATION

[5] The application has been made under s.217 of the Act, which 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.”

CONSIDERATION

[6] 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. 2 There is no clear test for determining when an ambiguity exists3 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 contention4. 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.5 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.6

[7] On the basis of the material before me I am satisfied that there is an ambiguity on the basis that the wages for Storeworkers are susceptible to more than one meaning. The Agreement provides wages for Storeworkers expressed as an hourly rate and as a weekly amount and the two amounts are inconsistent.

[8] I am also satisfied that the variation reflects the proper construction of the Agreement. The parties agree that the hourly rates of pay as set out in clause 1.2 of Part B of the Agreement are the correct agreed rates. The views of the UWU were sought in relation to this application and the UWU does not oppose the application.

CONCLUSION

[9] I am satisfied that it is appropriate to vary the Agreement to resolve an ambiguity or uncertainty. I am also satisfied that the variation proposed is appropriate. The variation will not involve rewriting the Agreement and reflects the proper construction of the Agreement. It is appropriate that the discretion to vary the Agreement to resolve the ambiguity or uncertainty is exercised.

[10] I Order that the Agreement be varied as follows:

(i) by deleting the existing weekly rates of pay table in clause 1.1 of Part B of the Agreement; and

(ii) by inserting the amended weekly rates of pay table in the following terms:

Classification	FFPP on or after 1st June 2020	FFPP on or after 1st June 2021
Storeworker grade 1	$853.48	$870.55
Storeworker grade 2	$897.18	$915.12
Storeworker grade 3	$1,006.62	$1,026.75
Storeworker grade 4	$1,211.06	$1,235.28

[11] The variations will operate from 21 May 2021, which is the day on which the Agreement will commence to operate. An order 7 giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

 1   Qube Logistics (SB) Pty Ltd T/A Qube Logistics [2021] FWCA 2744.

 2   Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].

 3   Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.

 4   Re Victorian Public Transport Enterprise Agreement 1994 [1995] AIRC 192 per VP Ross, SDP Polites and Cmr Grimshaw.

 5   Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per VP Ross, SDP O’Callaghan and Cmr Foggo.

 6 Ibid at [32].

 7   PR729878.

Printed by authority of the Commonwealth Government Printer

<AE511466  PR729875>