Tea Too Pty Ltd

[2022] FWCA 2336

[2022] FWCA 2336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Tea Too Pty Ltd

(AG2022/2070)

Tea Too Pty Ltd & United Workers Union Laverton Distribution Centre Enterprise Agreement 2022

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DEPUTY PRESIDENT COLMAN	MELBOURNE, 13 JULY 2022

Application for variation of the Tea Too Pty Ltd & United Workers Union Laverton Distribution Centre Enterprise Agreement 2022 to remove ambiguity or uncertainty

1. Tea Too Pty Ltd (company) has made an application under s 217(1) of the Fair Work Act 2009 (Cth) (Act) to vary the Tea Too Pty Ltd & United Workers Union Laverton Distribution Centre Enterprise Agreement 2022 (Agreement) to remove ambiguity or uncertainty. The application is supported by the United Workers Union (UWU), which is covered by the Agreement.

1. The ambiguity or uncertainty is said to be found in a table appearing in the wages provision in clause 20 of the Agreement. Clause 20.1 states that base hourly rates of pay for each classification level are shown in the table set out in the clause, and that ‘increases are effective from the first full pay period commencing on or after the dates listed’. Five columns appear in the table. The first column identifies the classifications covered by the Agreement. The second column sets out the base hourly rates of pay for these classifications, effective from 1 July 2022. The third column states the amount of a one-off bonus for employees in each classification who are employed on 1 July 2022. The descriptor of the fourth column refers to rates of pay as adjusted by an increase of ‘+ 3%’, effective from 1 July 2023. The descriptor of the fifth column is identical to that of the fourth column, the effect of which is that, on the face of the table, employees receive two three percent wage increases on 1 July 2023, and no increase in 2024. The parties contend that the reference in the descriptor of the fifth column to 1 July 2023 is a typographical mistake, and that it should say, and was intended to say, 1 July 2024.

1. The parties submit that the error in the table at clause 20 of the Agreement gives rise to an ambiguity or uncertainty because it is illogical that two wage increases in the same amount would be afforded on the same day. They submit that the Commission should vary the table to remove this ambiguity or uncertainty to reflect the intended meaning of the Agreement, which was explained to employees during the access period leading up to the vote on the Agreement.  

1. Section 217 of the Act provides that the Commission ‘may vary an enterprise agreement to remove an ambiguity or uncertainty’. The principles that apply to the Commission’s consideration of such applications are well-settled (see in particular Bianco Walling Pty Ltd v CFMMEU [2020] FCAFC 50). The presence of ambiguity or uncertainty is a jurisdictional prerequisite to the exercise of the discretion to vary an enterprise agreement under s 217. The Commission must make a positive finding as to whether the relevant provisions of the agreement are ambiguous or uncertain. The consideration of this question involves an objective assessment of the words in question, considered in their context. It is important that the Commission bear in mind the distinction between ambiguity and uncertainty.

1. In my opinion, the table contains an uncertainty, because it prescribes two wage increases to take effect from 1 July 2023, and no wage increase to occur in 2024, whereas clause 20.1 states that ‘increases’ are effective from the ‘dates’ indicated in the table. On the face of the table, there are two increases, but only one date on which an increase is made. It may be that the base rates of pay effective from 1 July 2022 also reflect an increase, but any such increase is not evident from the table. The second column does not indicate any increase, unlike the fourth and fifth columns, which each show an increase of ‘+ 3%’. Further, absent some explanation in the terms of the Agreement, it simply does not make sense that there should be two pay increases taking effect on the same day. One would rationally expect the second wage increase to occur in the following year. The apparent error in the descriptor of the fifth column creates an uncertainty.

1. I consider it appropriate to exercise my discretion to vary the Agreement to remove the uncertainty in the manner proposed by the parties. This will align the table with the intended meaning of the wages provision. I note that an explanatory statement provided by the company to employees prior to the vote on the agreement in connection with s 180(5) of the Act stated that clause 20 ‘outlines the wages for Grades 1 to 4 from 1 July 2022 and the increases for the following two years thereafter’. It is clear that there were intended to be wage increases in each of the following two years, not just in 2023. The explanatory material is consistent with a conclusion that the fifth column of the table was supposed to refer to 1 July 2024. Further, the company’s F17 declaration submitted in support of the application to approve the Agreement stated that, in addition to providing the employees with the explanatory statement, the company and the UWU had explained the terms of the Agreement to employees at a meeting on site. At a mention conducted on 12 July 2022, representatives of the company and the UWU confirmed that employees were told that there would be wages increases in each of 2023 and 2024.

1. I exercise my discretion to remove the uncertainty identified above by varying the Agreement to delete from column five in the table at clause 20 the words ‘1 July 2023’ and to insert in their place the words ‘1 July 2024’. The variation will operate from 20 July 2022.

DEPUTY PRESIDENT

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