Regional Publishers (Western Victoria) Pty Ltd T/A The Standard

[2024] FWCA 3905

[2024] FWCA 3905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Regional Publishers (Western Victoria) Pty Ltd T/A The Standard

(AG2024/3688)

Journalism
COMMISSIONER TRAN	MELBOURNE, 13 NOVEMBER 2024

Application for variation of the Warrnambool Standard Editorial Collective Agreement 2018

1. Regional Publishers (Western Victoria) Pty Ltd has applied to vary the Warrnambool Standard Editorial Collective Agreement 2018 under s 217 of the Fair Work Act 2009 to remove ambiguity or uncertainty. The Agreement was approved by the Commission on 5 March 2019 and came into operation on 12 March 2019. Its nominal expiry date was 30 June 2020.

1. The Media Entertainment and Arts Alliance (MEAA) is a party bound under clause 1.2 of the Agreement. The Agreement covers MEAA in accordance with s 183 which is noted in the approval decision, as required by s 201 of the Agreement. MEAA agrees with the application.

1. I received written submissions and an agreed statement of facts from the parties. The parties agreed for the matter to be dealt with on the papers.

Variation sought

1. The parties jointly sought that the Commission vary clauses 6.1 and 6.3 of the Agreement, which relates to the interaction of annual leave with public holidays. I have reproduced in Annexure A to this decision a table showing the current clause, and the variation sought.

1. Under the Agreement, employees are entitled to an additional 13 days of annual leave per year. The parties say that the additional 13 days of annual leave is compensation for working public holidays, instead of providing payment of public holiday penalty rates or time off in lieu. The exceptions to this are work on Good Friday and Christmas Day. The parties say this is a widespread and long-running industrial practice.[1]

1. The variation sought intends to clarify the above entitlement.

Relevant law

1. Section 217 of the Act provides:

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.

1. Section 217 of the Act allows the Commission to vary an enterprise agreement to remove an ambiguity or uncertainty. The Commission must first identify whether there is any ambiguity or uncertainty in the agreement.[2] This is a jurisdictional prerequisite to the exercise of the discretion to vary the agreement. If ambiguity or uncertainty is identified, the Commission must then consider whether to exercise its discretion to vary the agreement. In exercising its discretion, the Commission may remove ambiguity or uncertainty, but is not to give effect to a new and substantive change to the agreement.[3]

I find that there is ambiguity in the clauses

1. Determining whether there is ambiguity or uncertainty is a different task to interpreting enterprise agreements.[4] In ascertaining ambiguity or uncertainty, the Commission should take a broad approach and is not constrained by the principles of agreement interpretation.[5] In undertaking any of its functions, including in finding ambiguity or uncertainty, s 578 of the Act requires the Commission to take account of equity, good conscience and the merits of the matter and the objects of the Act including the particular part of the Act.

1. I am satisfied that there is an ambiguity in the clauses referred to. While the words of the clauses have a reasonably clear meaning and could be interpreted, the ambiguity arises when considering context, history and widespread industrial practice.

1. The parties provided an extensive agreed statement of facts, which included the history of the industrial practice, its inclusion in the current modern award during the modernisation process and its inclusion in five predecessor Agreements. The history persuasively demonstrates that the prevailing industry practice – that of providing an additional 13 days of annual leave because public holidays (which number 13) must be worked. The only exception to this is work on Good Friday and Christmas Day. This practice is also reflected in clauses 20 and 25 of the relevant award, the Journalists Published Media Award 2020.

1. The ambiguity allows for an interpretation of the relevant clauses that is contrary to the history of the Agreement and widespread and well understood industrial practice. That is, that employees would be entitled to either compensation for working on each public holiday (rather than only Good Friday or Christmas Day) or time off in lieu in addition to the extra 13 days of annual leave.

Does the variation remove that ambiguity or uncertainty?

1. I am of the view that the variation proposed removes ambiguity. I have given consideration to the fact that the application, supported by MEAA, and the submissions demonstrate a common intention with how the ambiguity should be removed.[6]

I exercise my discretion to vary the Agreement

1. The parties jointly support the variation. I am satisfied that it is appropriate to make the variation.

Retrospective effect of variation

1. The parties’ evidence is that an oversight during the drafting process of this Agreement resulted in ambiguity. There is common intention and joint support for the variation to operate from the date of the Agreement’s approval. I am satisfied that it is appropriate in this matter to retrospectively vary the Agreement and that the Act allows me to do so.[7] The consolidated version of the Agreement, as varied, is attached to this decision.

1. In accordance with s 217(2) of the Act, the variation operates from 5 March 2019.

1. An order will issue separately.[8]

COMMISSIONER

Final written submissions:
6 November 2024

ANNEXURE A

[1] Applicant and Respondents’ Statement of Agreed Facts, at [2].

[2] CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [46]; see also Monash University v NTEU [2023] FWCFB 181 at [16].

[3] CFMMEU & Ors v Specialist People Pty Ltd[2019] FWCFB 6307at [42]; see also re Australian Workers Union [2019] FWCA 4371 at [4].

[4] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [67].

[5] Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50 at [68].

[6] Monash University v NTEIU[2023] FWCFB 181 at [28].

[7] Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCAFC 132 at [91] – [92].

[8] PR781065

Printed by authority of the Commonwealth Government Printer

<AE502139  PR781063>