Specialised Linen Services (Cairns) Pty Ltd T/A SPL Services

[2023] FWCA 266

[2023] FWCA 266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Specialised Linen Services (Cairns) Pty Ltd T/A SPL Services

(AG2023/94)

SPL EMPLOYEE ENTERPRISE AGREEMENT CAIRNS

Dry cleaning and laundry services
COMMISSIONER SPENCER	BRISBANE, 25 JANUARY 2023

Application for variation of the SPL Employee Enterprise Agreement Cairns

1. An application has been made by the Specialised Linen Services (Cairns) Pty Ltd T/A SPL Services (the Applicant) pursuant to s.217(1) of the Fair Work Act 2009 (the Act) to remove an ambiguity or uncertainty in the SPL Employee Enterprise Agreement Cairns (the Agreement). The Agreement was approved by the Commission in a Decision published on 3 November 2022[1]. The Australian Workers’ Union (AWU) is a bargaining agent for the Agreement and is covered by the Agreement.

1. The Applicant is seeking that the Commission vary the Agreement by including the following provision of clause 5.2.1(c)

1. The Applicant submits that an omission was identified with regards to the approved agreement, in that it is primarily referencing and relying upon clause 5.2.1(c) as referenced in Part 9, Appendix 1, sec.1.2. The Applicant notes this clause is missing from section 5.2 of the approved Agreement. The Applicant submits this clause was referenced, discussed and formed part of the original materials submitted in support of the agreement.

Consideration

1. Section 217 of the FW Act 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.”

1. The applicant is the employer covered by the Agreement and therefore has standing to make the application.

1. Any 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. On the basis of the material before me, I am satisfied that there is an ambiguity on the basis that the omission of clause 5.2.1(c) from the approved Agreement, does not represent the intentions of the parties and what was agreed between the parties during negotiations.

1. I am also satisfied that the variation represents the proper construction of the Agreement, and that the variation has been sought with consent from the Applicant and the AWU, which has been consulted and provided consent for the variation.[7]

Conclusion

1. 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 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.

1. The variation will operate retrospectively from 3 November 2022.

COMMISSIONER

[1] [2022] FWCA 3874

[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] Letter from the AWU dated 25 January 2023.

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