DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

St Vincent's Private Hospitals Ltd Victoria T/A St Vincent's Private Hospital Kew; St Vincent's Private Hospital East Melbourne; and St Vincent's Private Hospital Fitzroy
(AG2016/7498)

ST VINCENT'S PRIVATE HOSPITALS LTD VICTORIA AND THE AUSTRALIAN NURSING AND MIDWIFERY FEDERATION AND HEALTH SERVICES UNION NURSES ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER ROE	MELBOURNE, 21 FEBRUARY 2017

Variation of agreement to remove uncertainty and or ambiguity.

[1] On 5 December 2016 St Vincent’s Private Hospitals Ltd made an Application under Section 217 of the Fair Work Act 2009 (the Act) to vary theSt Vincent’s Private Hospitals Ltd Victoria and the Australian Nursing And Midwifery Federation and Health Services Union Nurses Enterprise Agreement 2016 (the Agreement) to remove ambiguity or uncertainty. The relevant union, the ANMF, which is covered by the Agreement were advised and did not oppose the application.

[2] The Agreement was approved by me on 23 August 2016. There is some urgency to deal with this matter as the alleged uncertainty relates to the wage rates which are payable to employees. The alleged uncertainty is that in Appendix 1 – Wage Rates Schedule the wage rates and increases and allowances are specified to apply from various dates the first of which is “1/10/2016” but it is not clear if the increase operates from that date or from the first full pay period on or after that date.

[3] I am satisfied that St Vincent’s Private Hospitals Ltd Victoria can make the application in accordance with Section 217(1)(a). I am also satisfied that the agreed outcome of negotiations, which gave rise to the Agreement, was that the wages set out in the Wage Rate Schedule would be payable “from the first full pay period on or after” the dates specified. Due to a typographical omission, the Wage Rate Schedule is uncertain as to when the wage increase takes effect, including whether or not the wages should be payable on and from the specified date or on the first full pay period on or after the specified date.

[4] I am therefore satisfied that there is an uncertainty and that I should use my discretion to remove that uncertainty. The appropriate method to remove the uncertainty is to vary the Agreement to include at the bottom of the tables in Appendix 1 (Wage Rate Schedule) the following: “Note: the wage and allowance increases specified apply from the first full pay period on or after the dates specified”.

[5] The variation shall operate from 30 August 2016, the date of operation of the Agreement.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of St Vincent's Private Hospitals Ltd Victoria, trading as various St Vincent's Private Hospitals, the Federal Court was tasked with interpreting an agreement between the hospital and the Australian Private Hospitals Association (APHA). The dispute centred on whether the agreement allowed for the removal of uncertainties and ambiguities that had arisen over time.

The primary legal issue was whether the court had the authority to vary the agreement to remove these uncertainties and ambiguities. The hospital argued that the court should have the power to modify the agreement to eliminate inconsistencies and ensure clarity, while the APHA contended that the agreement's terms were clear and unambiguous, and thus not subject to variation by the court.

The court found that the agreement did not expressly preclude the removal of uncertainties and ambiguities. It emphasised the importance of ensuring that the agreement was clear and enforceable, and that the parties had intended the agreement to be a complete and final statement of their terms. The court held that it was appropriate to vary the agreement to the extent necessary to remove uncertainties and ambiguities, and to give effect to the parties' true intentions. The court found that the agreement could be varied to ensure it was clear, certain, and unambiguous.

The court varied the agreement to remove the uncertainties and ambiguities, and made a declaration that the varied agreement was binding on the parties. The APHA was ordered to pay the hospital's costs of the proceedings.

St Vincent's Private Hospitals Ltd Victoria T/A St Vincent's Private Hospital Kew; St Vincent's Private Hospital East Melbourne; and St Vincent's Private Hospital Fitzroy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established