The Police Federation of Australia (Victoria Police Branch)

[2017] FWCA 4755

[2017] FWCA 4755

FAIR WORK COMMISSION

DECISION

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

The Police Federation of Australia (Victoria Police Branch)
(AG2017/3129)

VICTORIA POLICE (POLICE OFFICERS (EXCLUDING COMMANDERS), PROTECTIVE SERVICES OFFICERS, POLICE RESERVISTS AND POLICE RECRUITS) ENTERPRISE AGREEMENT 2015

State and Territory government administration
COMMISSIONER WILSON	MELBOURNE, 13 SEPTEMBER 2017

Application for variation of the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015.

[1] This matter concerns an application made by the Police Federation of Australia (Victoria Branch) (“the PFA”) under s.217 of the Fair Work Act 2009 (“the Act”). The application seeks for the Fair Work Commission to remove an ambiguity or uncertainty in the Victoria Police (Police Officers (excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 1 (“the Agreement”).

[2] The Agreement was approved by Commissioner Lee on 21 March 2016 2 and was stated to operate from 28 March 2016, with a nominal expiry date of 30 November 20193. The Employer of the persons to be covered by the Agreement was stated as The Chief Commissioner of Police T/A Victoria Police, and the PFA were indicated as bargaining representatives on behalf of employees4.

[3] The PFA have applied for certain amendments to be made to the Agreement pursuant to s.217 of the Act. The amendments principally go to the issue of incorrect clause numbers and the re-defining of certain terms under the Agreement. It is said these changes are needed to correct uncertainty in interpretation of the Agreement.

Legislation

[4] Section 217 of the Act reads 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.”

Background

[5] The changes proposed and agreed to by both parties include the following:

• Clause 40.1(c) be amended to remove references to the phrase “clauses 165, 166, 168 and 170” and replace the phrase with “clauses 166, 167, 168, 171, 172”;



• Clause 53.1 be amended to remove the phrase “clause 75” and be replaced with the phrase “Part 12, clauses 75 and 85”;



• Clause 70.4 is amended to remove the phrase “night shift recovery shift” and replaced with the phrase “shift attracting an excessive night work allowance and a shift allowance, the greater of the two allowances will be paid”;



• Clause 154.3 be amended to remove references to “sub-clause 94.4” and is replaced with reference to “sub-clause 95.4”;



• Clause 166.7 be deleted and replaced with the phrase “An employee engaged in flying operations within the Airwing may work 12-hour shifts”.



• Clause 167 removes all references to “fingerprint Bureau” and replaces these phrases with “Fingerprint Sciences Group”;



• Clause 168 removes all references to “Field Services Branch” and replace these with the phrase “Crime Scene Group and Office of the Chief Forensic Scientist”.

[6] I agree that in all the circumstances there is ambiguity or uncertainty around these clauses and phrases within the Agreement which will be removed by a variation to the Agreement.

[7] I am satisfied that it is desirable to remove this ambiguity or uncertainty. Accordingly I will exercise my discretion to vary the Agreement as requested by the PFA.

[8]This variation shall operate from 13 September 2017.

COMMISSIONER

 1   AE418283.

 2   [2016] FWCA 1745.

 3 Ibid [5].

 4 Ibid [4].

Printed by authority of the Commonwealth Government Printer

<Price code A, AE418283  PR596044>