Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland

[2021] FWCA 2207

[2021] FWCA 2207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Queensland Electricity Transmission Corporation Limited T/A Powerlink Queensland
(AG2021/4065)

WORKING AT POWERLINK 2020 UNION COLLECTIVE AGREEMENT

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 2 JULY 2021

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).

[2] In a decision issued on 16 October 2020 I approved the Agreement. 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.

[3] On 8 March 2021, the Applicant filed a Form F1 application, making an application to vary the Agreement under both section 217 of the Act and s. 602 of the Act, for the Agreement to be corrected or amended so as to fix an obvious error, defect or irregularity. The application was served on the CEPU, the ASU and Professionals Australia.

[4] The application was listed for Mention on 26 March 2021. On 25 March 2021 I caused correspondence to be sent to the Applicant, referring to a decision of a Full Bench of the Commission in Advantage Care Pty Ltd v Health Services Union 1which held that the only option for a correction to the terms of an enterprise agreement once made, is by way of an application under s. 210 or 217 of the Act.

[5] On 25 March 2021, correspondence was received from the Applicant stating that it no longer pressed the application made under s. 602 of the Act and relied only on its application to vary the Agreement under s. 217 of the Act.

[6] The Mention was conducted on 26 March. Permission was granted for Ms T Lutvey of Ashurst to appear for the Applicant. Mr J Donaghy, Senior Industrial Officer appeared for the ASU and Ms S Harper, Industrial Officer appeared for the CEPU. A representative for Professionals Australia could not be contacted.

[7] Directions were issued at the Mention requiring the CEPU, the ASU and Professionals Australia to confirm whether they opposed the application. Correspondence was received from the CEPU, the ASU and Professionals Australia confirming they did not object to the application.

Variation sought

[8] The application seeks to vary clause 39.1.8 of the Agreement by replacing the allowance rates set out in the “2020/2021*” column of the table in that clause with the following rates in accordance with “Table 1 of the Australian Taxation Office's Tax Determination TD2020/5 "Income Tax: what are the reasonable travel and overtime meal allowance expense amounts for the 2020/21 income year”.

[9] In support of the application the Applicant submits that allowances for domestic travel expenses contained in predecessors to the Agreement have always been in accordance with Table 1 of the Tax Determination at the relevant time. Clause 39.1.8 of the Agreement was inserted into the Agreement in the same form as it had appeared in the predecessor agreement and was not discussed during bargaining. It was intended that the final column of the Table would be updated to reflect the current Tax Determination and that there be no departure from the position taken in earlier agreements. Incorrect amounts were inadvertently transposed into the Agreement, from Table 2 of the Tax Determination, contrary to the intention of the parties.

[10] The error was not noted until after the Agreement was approved. As a result, there is an inconsistency between the wording in clause 39.1.8 of the Agreement, the reference to Table 1 in the heading of the Table and the amounts shown in the final column of the Table in clause 39.1.8. The Applicant tendered relevant Tax Determinations to evidence this error.

Relevant Legislation

[11] 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

[12] 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 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

[13] Based on the submissions and the material before me, I am satisfied that that clause 39.1.8 of the Agreement is ambiguous or, in the alternative, uncertain because of the inconsistencies between the stated intention that the amounts would be as per Table 1 of the Tax Determination and the monetary amounts in that determination which are not in accordance with Table 1 of the Tax Determination. I am also satisfied in the circumstances that it is appropriate to exercise my discretion under s.217 of the Act to vary clause 39.1.8 in the manner sought.

[14] 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

[15] For the reasons given, pursuant to s.217 of the Act, I vary clause 39.1.8 of the Agreement by deleting the existing table and inserting the amended table in the following terms:

Allowance	Taxation determination reference (Table 1)	2020/2021*
Full Travel meal	Tier 2 Country Centres	$105.75
Breakfast	Tier 2 Country Centres	$25.75
Lunch	Tier 2 Country Centres	$29.35
Dinner	Tier 2 Country Centres	$50.65
Incidentals	Tier 2 Country Centres	$20.40

[16] 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   [2021] FWCFB 453.

 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   PR731301.

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