Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland

[2022] FWCA 711

[2022] FWCA 711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland

(AG2022/266)

Working at Powerlink 2020 Union Collective Agreement

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 FEBRUARY 2022

Application for variation of the Working at Powerlink 2020 Union Collective Agreement

Background

1. The Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland (the Applicant) applies to the Fair Work Commission (the Commission) under section 217 of the Fair Work Act 2009 (the Act) for a variation of an enterprise agreement known as the Working at Powerlink 2020 Union Collective Agreement (the Agreement) to remove an ambiguity or uncertainty (the variation application).

1. In a decision issued on 16 October 2020 I approved the Agreement[1]. As noted in the decision, the Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), the Australian Municipal, Administrative, Clerical and Services Union (the ASU) and the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia), who were bargaining representatives for the Agreement.  The Agreement commenced operation on 23 October 2020.

1. On 4 February 2022, the Applicant filed a Form F1 application, making an application to vary the Agreement under section 217 of the Act. The application was served on the CEPU, the ASU and Professionals Australia.

Variation sought

1. The application seeks to vary Attachment 1 to Schedules 9A and 9B of the Agreement by deleting the three aggregated salary tables which contain incorrect aggregated salaries for “Weekend Worker – Trade Technician”, “Weekend Worker – Power Worker” and “Weekend Worker – Electrical Apprentice” classifications.

1. In support of the application the Applicant submits that the aggregated annual salaries have been incorrectly adjusted and inadvertently provide for greater wage increases than the 3% wage increase agreed to by the parties. The three salary tables set out the aggregated annual salaries that take effect on 1 March 2022, 1 September 2022 and 1 March 2023 respectively for Trade Technicians, Power Workers and Electrical Apprentices who work Weekend Work Arrangements. The aggregated annual salaries are comprised of the relevant base rates in addition to a substation allowance, tool allowance, overtime penalties, annualised leave loading, EFT allowance and Transmission Network Reliability Allowance.

1. The Agreement replaced the previous agreement known as the Working at Powerlink 2018 Union Collective Agreement (the 2018 Agreement). The 2018 Agreement also provided for wage increases for Trade Technicians, Power Workers and Electrical Apprentices who work Weekend Work Arrangements in Attachment 1 to Schedules 9A and 9B of the 2018 Agreement. These increases took effect on 1 March 2018, 28 February 2019 and 28 February 2020. As with the current Agreement, these aggregated annual salaries also comprised the relevant base rates in addition to a substation allowance, tool allowance, overtime penalties, annualised leave loading, EFT allowance and Transmission Network Reliability Allowance.

1. In negotiating the Agreement, the parties agreed that a compounding 3% wage increase to the wages provided under the previous Agreement would be applied from 1 March 2022. This is set out in Clause 17 of the Agreement as follows:

“17.1 Base Pay – Timing of the payments
This Agreement provides for the following guaranteed compounding wage adjustment:

i. From 1 March 2022, a 3.0% wage increase;
ii. From 1 September 2022, a further 3.0% wage increase; and
iii. From 1 March 2023, a further 3.0% wage increase.

17.2 The parties have agreed to a review over the term of this Agreement based on the movement in CPI over the full term of this agreement and adjust base rates where CPI has moved by a higher total percentage amount than the base rate increases provided by this Agreement (9.27%). Such adjustment will take the form of an increase by the percentage necessary to ensure that base rates have moved by at least the same amount as CPI over the term of this Agreement, and will be payable prospectively from the last pay period within the nominal term of this Agreement.”

1. The Applicant submits this clearly indicates the intention of the parties for the compounding wage increases from 1 March 2022 to only be 3%.

1. As a result of comparing the aggregated annual salaries for Trade Technicians, Power Workers and Electrical Apprentices effective 28 February 2020 as set out in Attachment 1 to Schedules 9A and 9B of the 2018 Agreement to the aggregated annual salaries due to be applied with effect from 1 March 2022 set out in Attachment 1 to Schedules 9A and 9B of the current Agreement, the Applicant submits it is evident that a larger than 3% increase has inadvertently been applied.

1. In calculating the aggregated annual salaries inclusive of the 3% wage increase for Weekend Workers effective from 1 March 2022, 1 September 2022 and 1 March 2023 respectively, the aggregated annual salaries set out in Attachment 1 to Schedules 9A and 9B of the 2018 Agreement were inadvertently and incorrectly used. The Applicant submits that to calculate the correct Weekend Worker aggregated salaries, the relevant components should have been:

a. the base rate effective 28 February 2020; and

b. a calculation of the relevant penalties associated with the work patterns and relevant allowances, calculated by reference to the base rate effective 28 February 2020, all inclusive of the agreed year on year 3% increases.

1. The Applicant submits that this incorrect calculation has resulted in the aggregated annual salaries in the Agreement incorrectly giving a larger than 3% increase for all paypoints. By inadvertently calculating the components of the aggregated annual salaries effective from 1 March 2022, by using the aggregated annual salaries effective from 28 February 2020, rather than the base rate, the aggregated annual salaries under the 2020 WAPA have, in effect, provided a “penalty on a penalty”, which has resulted in an increase for each paypoint of between 27-30%, rather than the agreed 3%.

1. The error was not noted until after the Agreement was approved. The Applicant submits that the increase of between 27 - 30% is clearly an error. The intention of the parties for a 3% wage increase to be applied effective 1 March 2022, 1 September 2022 and 1 March 2023 respectively, is clear from the express language of clause 17.1 of the Agreement and there was no intention for salaries to be increased by between 27 - 30%.

Relevant Legislation

1. 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

1. 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 exists[3] 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.[4] 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]

1. Based on the submissions and the material before me, I am satisfied the aggregated annual salary tables in Attachment 1 to Schedule 9A and 9B create an uncertainty and ambiguity in the Agreement when regard is had to clause 17.1 of the Agreement, which states that these increases are to be 3%. I am also satisfied in the circumstances that it is appropriate to exercise my discretion under s.217 of the Act to vary Attachment 1 to Schedule 9A and 9B in the manner sought.

1. I am satisfied that the variation sought reflects the proper construction of the Agreement. The views of the CEPU, the ASU and Professionals Australia were sought, and those organisations have confirmed they do not object to the application.

Conclusion

1. For the reasons given, pursuant to s.217 of the Act, I vary Attachment 1 to Schedule 9A and 9B of the Agreement by deleting the existing tables and inserting the amended tables in the following terms:

Weekend Workers - Trade Technician
Salary Point	Effective 1 March 2022	Effective 1 September 2022	Effective 1 March 2023
4.0	$101,574	$104,621	$107,759
4.1	$103,279	$106,378	$109,569
4.2	$104,987	$108,137	$111,381
5.0	$106,693	$109,894	$113,190
5.1	$108,400	$111,651	$115,001
5.2	$110,100	$113,402	$116,804
6.0	$111,809	$115,162	$118,617
6.1	$113,516	$116,922	$120,429
6.2	$115,218	$118,675	$122,235
7.0	$116,923	$120,430	$124,043
7.1	$118,628	$122,187	$125,853
7.2	$120,332	$123,942	$127,660
8.0	$122,039	$125,700	$129,470
8.1	$123,741	$127,453	$131,276
8.2	$125,453	$129,217	$133,093
9.0	$127,156	$130,970	$134,899
9.1	$128,862	$132,728	$136,710
9.2	$130,567	$134,485	$138,519
9.3	$132,271	$136,239	$140,326
10.0	$133,985	$138,004	$142,144
10.1	$135,678	$139,748	$143,941
10.2	$137,388	$141,509	$145,754
10.3	$139,092	$143,264	$147,563
11.0	$139,941	$144,140	$148,464
11.1	$141,858	$146,114	$150,497
11.2	$143,789	$148,102	$152,545
11.3	$145,711	$150,082	$154,584
11.4	$147,633	$152,062	$156,625
11.5	$149,555	$154,041	$158,662
12.0	$151,487	$156,031	$160,713
12.1	$153,413	$158,015	$162,755
12.2	$155,340	$160,000	$164,800
12.3	$157,261	$161,979	$166,838
12.4	$159,190	$163,965	$168,885
12.5	$161,116	$165,949	$170,927
13.0	$163,036	$167,926	$172,964
13.1	$166,234	$171,220	$176,357
13.2	$169,433	$174,515	$179,750
13.3	$172,628	$177,807	$183,142

Note: The above rates include Substation Allowance, Tool Allowance, Overtime Penalties, Annualised Leave Loading, EFT Allowance and Transmission Network Reliability Allowance.

Weekend Workers - Power Worker
Salary Point	Effective  1 March 2022	Effective 1 September 2022	Effective  1 March 2023
0.0	$86,129	$88,713	$91,374
1.0	$86,662	$89,262	$91,940
1.1	$87,127	$89,740	$92,433
1.2	$87,585	$90,212	$92,918
1.3	$88,057	$90,699	$93,420
1.4	$88,518	$91,173	$93,909
1.5	$88,978	$91,647	$94,396
1.6	$89,446	$92,129	$94,893
1.7	$89,907	$92,604	$95,383
2.0	$90,369	$93,079	$95,871
2.1	$90,834	$93,559	$96,366
2.2	$91,293	$94,032	$96,852
2.3	$91,761	$94,513	$97,348
2.4	$92,225	$94,992	$97,842
2.5	$92,682	$95,462	$98,325
2.6	$93,154	$95,948	$98,826
2.7	$93,620	$96,428	$99,321
3.0	$94,084	$96,906	$99,813
3.1	$94,545	$97,381	$100,302
3.2	$95,013	$97,863	$100,799
3.3	$95,477	$98,341	$101,291
3.4	$95,931	$98,808	$101,772
3.5	$96,401	$99,293	$102,272
3.6	$96,860	$99,766	$102,759
3.7	$97,323	$100,242	$103,249
4.0	$97,788	$100,722	$103,744
4.1	$99,495	$102,479	$105,553
4.2	$101,202	$104,238	$107,365
5.0	$102,907	$105,995	$109,175
5.1	$104,615	$107,753	$110,986
5.2	$106,314	$109,503	$112,789

Note: The above rates include Substation Allowance, Tool Allowance, Overtime Penalties, Annualised Leave Loading, EFT Allowance and Transmission Network Reliability Allowance.

Weekend Worker - Electrical Apprentice
Trade Year	Rate (% or Salary Point)	Apprentice Rates $			Adult Apprentice Rates $
		Effective 1 March 2022	Effective 1 September 2022	Effective 1 March 2023	Effective 1 March 2022	Effective 1 September 2022	Effective 1 March 2023
1	40	$40,930	$42,158	$43,422	$80,722	$83,143	$85,637
2	55	$55,686	$57,357	$59,077	$82,617	$85,095	$87,648
3	75	$75,361	$77,622	$79,951	$85,142	$87,696	$90,327
4	90	$90,118	$92,821	$95,606	$90,118	$92,821	$95,606
On Completion	Salary Point 4.0	$99,956	$102,954	$106,042	$99,956	$102,954	$106,042

Note: The above rates include Substation Allowance, Overtime Penalties, Annualised Leave Loading, EFT Allowance and Transmission Network Reliability Allowance.

1. I also consider it is appropriate in the circumstances that the Agreement be varied effective from the date it commenced operation. Pursuant to s.217(2) of the Act, this variation will operate from 23 October 2020. An Order[7] giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

[1] [2020] FWCA 5538.

[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] PR738849.

Printed by authority of the Commonwealth Government Printer

<AE509266  PR738808>