Staples Australia Pty Ltd

[2014] FWCA 2905

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
Staples Australia Pty Ltd
(AG2014/5687)
STAPLES ENTERPRISE AGREEMENT 2014-2016
Storage services
COMMISSIONER ROE	MELBOURNE, 6 MAY 2014

Application for variation of the Staples Enterprise Agreement 2014-2016.

[1] An application has been made for approval of a variation of the Staples Enterprise

Agreement 2014-2016 (the Agreement). The application was made pursuant to s.210 of the
Fair Work Act 2009 (the Act) by Staples Australia Pty Ltd.

[2] The variation seeks to change the hours of shifts in Clause 4 of the Agreement. The Early Morning Shift is to be varied from “starts between 4am and 5:30am” to “starts at or after 4am and before 6am”. The Afternoon Shift is to be varied from “finishes between 7:30pm and midnight” to “finishes after 7pm and at or before midnight”. The Evening Shift is to be varied from “starts between 8pm and 3:30am” to “finishes after midnight and before midday”.

[3] I am satisfied that the clause as currently drafted means that it is uncertain whether a shift which starts at 5.45am is an early morning shift or a day shift. I am satisfied that it was the mutual intention of the parties that a shift which starts before 6am be an early morning shift. I am therefore satisfied that the uncertainty or ambiguity should be removed in the manner sought, that is, by defining the early morning shift as any shift which starts at or after 4am and before 6am.

[4] I am satisfied that the clause as currently drafted means that it is uncertain whether a shift which finishes at 7.15pm is a day shift or an afternoon shift. I am satisfied that it was the mutual intention of the parties that a shift which finishes after 7pm be an afternoon shift. I am therefore satisfied that the uncertainty or ambiguity should be removed in the manner sought, that is, by defining the afternoon shift as any shift which finishes after 7pm and at or before midnight.

[5] I am satisfied that the clause as currently drafted means that it is uncertain whether a shift which finishes at 12.30am is an evening shift or is an afternoon shift. I am satisfied that it was the mutual intention of the parties that a shift which finishes after midnight should be an evening shift. I am therefore satisfied that the uncertainty or ambiguity should be removed [2014] FWCA 2905

in the manner sought, that is, by defining the evening shift as a shift which finishes after
midnight and before midday.

[6] I am satisfied after hearing the submissions of Mr Swan for the company that the variation will not result in any change to existing practice, will reflect the mutual intention of the parties and the understanding of employees at the time that they voted for the Agreement and will remove the uncertainty and or ambiguity.

[7] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met.

[8] The application is approved and, in accordance with s.216 of the Act, shall come into effect from 2 May 2014.

[9] A consolidated version of the Agreement is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Staples Australia Pty Ltd applied to the Fair Work Commission for approval of a variation to the Staples Enterprise Agreement 2014-2016. The proposed variation sought to amend the hours of shifts in Clause 4 of the agreement, including changing the start and finish times for early morning, afternoon, and evening shifts. The primary legal issue for the Commission to determine was whether the proposed changes would resolve ambiguities in the existing agreement, accurately reflect the mutual intentions of the parties, and not adversely affect existing practices.

The Commission found that the current wording of Clause 4 created uncertainty regarding the classification of certain shift times, such as whether a shift starting at 5:45am should be considered an early morning or day shift. The Commission was satisfied that the proposed changes would remove these ambiguities and accurately reflect the parties' mutual intentions. Additionally, the Commission concluded that the variation would not alter existing practices and would be consistent with the understanding of employees when they voted for the agreement. Based on these findings, the Commission approved the application and determined that the variation would come into effect from 2 May 2014, in accordance with section 216 of the Fair Work Act 2009.

The decision concluded with the approval of the variation and noted that a consolidated version of the amended agreement was attached to the decision. The Commission's approval of the variation ensures that the Staples Enterprise Agreement 2014-2016 will be clearer and more accurately reflect the intentions of the parties involved, without disrupting existing practices.

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