The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education; The Roman Catholic Trust Corporation for the Diocese of Cairns T/A Centacare Cairns; The Roman Catholic...
[2018] FWCA 478
•24 JANUARY 2018
| [2018] FWCA 478 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education; The Roman Catholic Trust Corporation for the Diocese of Cairns T/A Centacare Cairns; The Roman Catholic Trust Corporation for the Diocese of Rockhampton; The Corporation of the Roman Catholic Diocese of Toowoomba; The Roman Catholic Trust Corporation for the Diocese of Townsville
(AG2017/6013)
CATHOLIC EMPLOYING AUTHORITIES SINGLE ENTERPRISE COLLECTIVE AGREEMENT - DIOCESAN SCHOOLS OF QUEENSLAND 2015-2019
Educational services | |
COMMISSIONER BOOTH | BRISBANE, 24 JANUARY 2018 |
Application for variation to remove ambiguity or uncertainty in the Catholic Employing Authorities Single Enterprise Collective Agreement - Diocesan Schools of Queensland 2015-2019.
[1] This is an application made under s.217 of the Fair Work Act 2009 by The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education; The Roman Catholic Trust Corporation for the Diocese of Cairns T/A Centacare Cairns; The Roman Catholic Trust Corporation for the Diocese of Rockhampton; The Corporation of the Roman Catholic Diocese of Toowoomba; The Roman Catholic Trust Corporation for the Diocese of Townsville and referred to as the Diocesan Schools of Queensland (Employers) and the Independent Education Union of Australia-Queensland and Northern Territory Branch (IEUA).
[2] Section 217 of the Act provides as follows:
“(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.”
[3] The application seeks approval of the Fair Work Commission to make variations to the Catholic Employing Authorities Single Enterprise Collective Agreement - Diocesan Schools of Queensland 2015-2019 (the Agreement).
[4] The joint applicants contend the variations sought can be categorised as removing ambiguities or uncertainties from the Agreement.
[5] The application seeks the removal of redundant provisions and schedules, and to remedy erroneous omissions or insertions that create ambiguity or uncertainty when interpreting the working conditions of employees.
[6] The applicants submit that the amendments do not alter the meaning of the operational provisions of the Agreement or how the Agreement is intended by the parties to be interpreted.
Consideration
[7] As to the removal of redundant provisions and schedules, the applicants referred to the enterprise agreement negotiations. In particular to the participation of the parties under the auspices of the New Approaches Program under s.576(2)(aa) of the Act and assisted in this process by Vice President Catanzariti and myself, where the parties agreed that the Agreement would contain a notice to employees informing them that certain schedules would be expunged after a nominated date. These notices appeared at the beginning of the schedules. The notices informed employees about the proposed changes prior to their participating in the ballot process.
[8] An example of this is contained in Schedule 2 as follows:
“This Schedule ceases to have effect from and including 1 July 2017 – see clause 4.1.5. Subsequent to that date, Schedule 2 will be expunged from this Enterprise Agreement”.
[9] The proposed varied Agreement properly reflects these amendments.
[10] In addition, the proposed variations correct omissions and some minor incorrect referencing.
[11] The application was listed for Conference on 23 January 2018. The representatives for the joint applicants, Mr Spriggs for the IEUA and Mr Whitehouse for the Queensland Catholic Education Commission (QCEC) attended and confirmed that they sought the variations and amendments as proposed in the application.
[12] I have found that the variations to be made reflect the mutual intention of the parties at the time the Agreement was made and that the variations be made in accordance with the application.
[13] A consolidated copy of the varied Agreement is attached to this Decision.
COMMISSIONER
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