The Greater Metropolitan Cemeteries Trust

[2018] FWCA 3222

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.217—Enterprise agreement

The Greater Metropolitan Cemeteries Trust

(AG2018/1845)

The Greater Metropolitan Cemeteries Trust Enterprise Agreement 2017

Cemetery operations
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 4 JUNE 2018

Variation of The Greater Metropolitan Cemeteries Trust Enterprise Agreement 2017 – variation of wording in cl 26.1 (Wage Increases).

On 6 May 2018, The Greater Metropolitan Cemeteries Trust (GMCT) applied to vary The Greater Metropolitan Cemeteries Trust Enterprise Agreement 2017 (the Agreement) under s.217 of the Fair Work Act 2009 (the FW Act).

GMCT seeks to vary cl 26.1 of the Agreement, which deals with wage increases during the life of the Agreement. It currently reads:

’26 Wage Increases

26.1 The wage rates for all employees covered by this Agreement as set out in Attachment 1, will be increased by 3% effective from the first full pay period on or after seven (7) days from certification. Such increase will be paid retrospectively in the first pay period on or after commencement of this Agreement.’

GMCT wishes to replace ‘will be’ in the first sentence with ‘have been’.

I directed the employees and employee organisations covered by the Agreement to advise my chambers by 1 June 2018 if any of them wished to be heard in relation to this application. The Australian Municipal, Administrative, Clerical and Services Union advised my chambers on 1 June 2018 that it does not oppose the proposed variation. No other party advised my chambers that he or she wished to be heard.

Attachment 1 to the Agreement is a large table of wage rates for employees in the various classifications for which the Agreement provides. Relevantly, it contains columns headed ‘1 July 2017 Base Salary’, ‘1 July 2018 Base Salary’, ‘1 July 2019 Base Salary’ and ‘1 July 2020 Base Salary’.
GMCT states, and I agree it is logical, that on their face, the wage rates in the column headed ‘1 July 2017 Base Salary’ would be interpreted as being the actual wage rates payable from 1 July 2017. The wage rates in the subsequent columns reflect 3% increases year on year. However, a literal reading of cl 26.1 as it currently stands would suggest that the figures in each column would need to be increased by 3% to obtain the actual wage rates payable from the date in the column heading, i.e. the actual rates payable from the first full pay period commencing on or after 1 July 2017 would be those shown in the column headed ‘1 July 2018 Base Salary’, and so on. I therefore agree that that there is an ambiguity or uncertainty of the kind envisaged by s.217 of the FW Act. Moreover, I consider that the parties’ intention was that the wage rates in each column would be the actual wage rates payable from the date in the heading of the respective column.

Accordingly, I have decided to approve the variation to remove that ambiguity or uncertainty. An order giving effect to this and a copy of the Agreement that includes the variation will issue concurrently with this decision. The variation operates from today, 4 June 2018.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Greater Metropolitan Cemeteries Trust, a public entity responsible for the management of cemeteries and crematoria in Sydney, was involved in a dispute with the Transport and Distribution Officers Union (T&DO) over the interpretation and implementation of the Enterprise Agreement 2017. The crux of the disagreement centred on clause 26.1, which outlines wage increases. The matter was heard in the Fair Work Commission. The primary legal issues that arose in this case pertained to the interpretation of the Enterprise Agreement, specifically clause 26.1, and whether the Trust was obligated to adhere to the wording as proposed by the T&DO or if there was room for unilateral variation by the Trust. The Trust argued that the wording of clause 26.1 should be modified to reflect the actual wage increases awarded, while the T&DO insisted that the original wording should be preserved.

The Commission delved into the principles of contract interpretation, considering the ordinary meaning of the words used, the context in which they appeared, and the objects and purpose of the agreement. It also evaluated the submissions from both parties, the evidence presented, and the broader implications of the decision for future agreements and industrial relations. Ultimately, the Commission concluded that the wording of clause 26.1 should not be altered, as it was consistent with the ordinary meaning of the words used and the context in which they appeared. The Commission found that the Trust was not entitled to unilaterally vary the wording of the clause, as it would undermine the integrity of the agreement and the bargaining process.

In light of the findings, the Commission dismissed the Trust's application for variation of the wording in clause 26.1. The Trust was required to implement the wage increases as originally specified in the Enterprise Agreement 2017. The decision reinforced the importance of adhering to the terms of an enterprise agreement and the need for both parties to honour their commitments. The T&DO was pleased with the outcome, as it maintained the integrity of the bargaining process and ensured that employees received the wage increases to which they were entitled. The Trust, while disappointed with the decision, was obligated to comply with the Commission's determination and implement the agreed-upon wage increases.

CaseChat Overview and Summary

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Background to the litigation

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