Sunfresh Health Pty Ltd

[2018] FWCA 5807

[2018] FWCA 5807

FAIR WORK COMMISSION

DECISION

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

Sunfresh Health Pty Ltd
(AG2018/3215)

SUNFRESH HEALTH ENTERPRISE AGREEMENT 2017 VARIATION

Dry cleaning and laundry services
DEPUTY PRESIDENT ASBURY	BRISBANE, 23 OCTOBER 2018

Application for variation of the Sunfresh Health Enterprise Agreement 2017 Variation.

[1] Sunfresh Health Pty Ltd (the Applicant) applies for the Fair Work Commission (the Commission) to vary the Sunfresh Health Enterprise Agreement 2017 Variation (the Agreement) to remove an ambiguity or uncertainty. The application is made pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved by Deputy President Colman on 26 July 2017. An earlier application to vary the Agreement pursuant to s. 210 of the Act was made on 14 August 2017, and the variation to the Agreement was made by Senior Deputy President Hamberger on 22 August 2017. There are no employee organisations covered by the Agreement.

[3] The Applicant submits that there is ambiguity under the Agreement when cl 12 and 13 of the Agreement are read together, as there is an overlap between the ordinary hours of day workers, and shift workers working morning shifts or afternoon shifts. The Applicant applies to vary clause 13(b) of the Agreement to provide a definition of “shift worker” that excludes workers performing day work under clause 12 of the Agreement.

[4] On 10 August 2018 I issued Directions requiring the Applicant to provide further submissions as to how s. 217 of the Act was satisfied, and evidence of how any bargaining representatives or employees were notified of the proposed variations, and their views, if any, in relation to the proposed variation. I also requested that the Applicant confirm its views as to whether the application could be determined on the material before the Commission, without a hearing.

[5] On 17 August 2018 the Applicant filed a submission in support of the application, which annexed evidence of communication sent to an employee bargaining representative and a notice to the employees of the variation. The Applicant stated in its submission that it consented to the matter being determined on the material before the Commission, without a hearing being held.

RELEVANT LEGISLATION

[6] The application has been made under s.217 of the Act, which 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.”

SUBMISSIONS

[7] The Applicant submits there is an ambiguity in the Agreement in relation to the interaction between the provisions in clauses 12 and 13 of the Agreement. By virtue of clause 11 of the Agreement, employees may be employed to work either “day work” or “shift work”. Clause 12(b) of the Agreement provides that employees will be paid as “day workers” for ordinary hours that are within the hours stated in clause 12(c) of the Agreement. Clause 12(c) of the Agreement states that Ordinary Hours for Transport Workers/ Drivers working are worked between 5.30 am to 6.30 pm Monday to Friday. Employees undertaking Day Work are to be paid at the standard hourly rates outlined in clause 18 of the Agreement without any additional loadings.

[8] Clause 13(e)(i) of the Agreement provides that a Morning Shift on Monday to Friday for Drivers, Transport and Laundry Workers means a shift commencing before 6.00 am and provides that employees working such hours will receive an allowance of 15%. The Applicant submits that an ambiguity arises as more than one meaning can be attributed to Transport Workers that commence a shift between the times of 5.30 am and 6.00 am, and it is unclear whether the 15% loading for shift workers is applicable to all employees who commence work during that time including day workers. In the Form F1 Application, the Applicant describes the ambiguity as an overlap between the ordinary hours for day workers and shift workers resulting in the possibility that an employee could fall under the definitions for both day work and shift work, so that there is a lack of clarity about whether a day worker could be entitled to shift loadings.

[9] The Applicant submits this creates a sufficient ambiguity for the Commission to exercise its discretion under s. 217 of the Act to resolve the ambiguity by varying the agreement. Further, the Applicant submits that the primary consideration for the Commission when exercising the discretion is the mutual intention of the parties, and that there was a mutual intention on the part of the parties involved in bargaining that the 15% loading would not apply to workers that commence a shift at 5.30 am. The Applicant submits it did not intend for the extra loading to be paid in circumstances where transport workers commence a shift between 5.30 am and 6.00 am.

[10] In support of the variation application, the Applicant filed a letter sent to Beti Petkovski, the employee bargaining representative listed on the Agreement, on 16 August 2018. The letter outlines the ambiguity that the Applicant seeks to remedy and the proposed variation to be made to the Agreement and seeks the views of the bargaining representative. The Applicant also filed a statutory declaration made by Beti Petkovski in response to this letter, declaring that it was the intention of the parties during the negotiation of the Agreement that Drivers and Transport Workers commencing a shift between the hours of 5.30 am and 6.00 am would fall under the definition of “Day Worker” and would not receive the 15% loading for a morning shift. Further, the declaration states that the variation is supported.

CONSIDERATION

[11] An 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. 1 There is no clear test for determining when an ambiguity exists2 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 contention3. 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.4 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.5

[12] On the basis of the material before me I am satisfied that there is an ambiguity on the basis that the Agreement provisions in relation to day work and shift work are susceptible to more than one meaning. The Agreement does not provide a definition of shift work or shift worker and there is a lack of clarity in relation to the entitlement to allowances in clause 13(e) for employees who are working hours that coincide with the hours for Morning Shift in clause 13(e)(1).

[13] I am also satisfied that the variation reflects the proper construction of the Agreement. The terms of clauses 12 and 13 create a distinction between shift work and day work based on the ordinary hours specified in each of those clauses. Day work as set out in clause 12 of the Agreement involves employees a maximum of eight hours per day, 38 hours per week averaged over a four week period, from Monday to Friday. Shift work as set out in clause 13 of the Agreement provides for up to ten ordinary hours per day worked from Monday to Sunday and averaged over a four week period. The variation proposed makes it clear that employees performing day work as provided in clause 12 of the Agreement are not shift workers.

CONCLUSION

[14] 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 will not involve rewriting the Agreement and 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. I have also had regard to the statement of the bargaining representative for the Agreement which indicates support for the variation.

[15] I Order that the Agreement be varied by deleting cl 13(b) and replacing it with “A shift worker is one engaged as such and with their ordinary hours of work specified below, however a shift worker does not include workers performing day work under clause 12 of this agreement.” I also order that the title of the Agreement be varied to be the “Sunfresh Health Enterprise Agreement 2017 VARIATION 2”. An order giving effect to this and a consolidated version of the Agreement that contains the variations will be published with these reasons. The variation operates from 16 July 2018

DEPUTY PRESIDENT

 1   Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].

 2   Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.

 3   Re Victorian Public Transport Enterprise Agreement 1994 [1995] AIRC 192 per VP Ross, SDP Polites and Cmr Grimshaw.

 4   Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per VP Ross, SDP O’Callaghan and Cmr Foggo.

 5 Ibid at [32].

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