Same Pty Ltd T/A North Point Cafe

[2022] FWCA 3705

[2022] FWCA 3705

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 10—Application to vary transitional instrument to remove ambiguity

Same Pty Ltd T/A North Point Cafe

(AG2022/4013)

NORTH POINT CAFE EMPLOYEE COLLECTIVE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 JANUARY 2023

Application for variation of the North Point Café Employee Collective Agreement 2009

1. Same Pty Ltd (Same) which trades as North Point Café has applied under Schedule 3, Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to vary the North Point Café Employee Collective Agreement 2009 (Agreement) to remove an ambiguity or uncertainty.

1. Same seeks to vary clause 1 of the Agreement, which sets out the parties to the Agreement, by replacing the words “Salem Corporation Pty Ltd” with “Same Pty Ltd” to correct the name of the employer to whom the Agreement is expressed to cover. Same also seek corresponding adjustments to the ABN number and the company name referred to on the signature pages.

1. Same was directed to file submissions addressing the issue of whether there is an ambiguity or uncertainty in the Agreement.

1. Schedule 3, Item 10 relevantly provides the following:

“(1)On application by a person covered by a transitional instrument, the FWC may make a determination varying the instrument:

(a)       to remove an ambiguity or uncertainty in the instrument; or

…”

1. Schedule 3, Item 10 provides the discretion to vary a transitional instrument (the Agreement) may only be exercised if first the Commission is satisfied that there is ambiguity or uncertainty in the Agreement. The principles that are to be applied in considering an application under schedule 3, Item 10 are equivalent to those applied in considering an application under s.217 of the Fair Work Act 2009 which deals with variation of an enterprise agreement to remove an ambiguity or uncertainty. The applicable principles for dealing with applications to remove an ambiguity or uncertainty from an industrial instrument are uncontroversial and need not be recited here.  

1. I accept that clause 1 of the Agreement is uncertain as it refers to the incorrect company name as the employer to whom the Agreement is expressed to cover and so suggests that the Agreement is not binding on the true employer. I am satisfied that it is appropriate to exercise my discretion to vary the Agreement. For the uncertainty identified to be removed clause 1 of the Agreement will be amended to provide the correct company name and ABN. I will also include the Australian Company Number applicable to Same Pty Ltd.  I will not alter the signature page because I doubt that the signature page constitutes part of the Agreement which may varied.

1. An order giving effect to this decision is separately issued in PR747152.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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