Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, Uniting Church Camping Unit

[2014] FWCA 4862

[2014] FWCA 4862

FAIR WORK COMMISSION

DECISION

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

Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, Uniting Church Camping Unit
(AG2014/1649)

UNITING CHURCH CAMPING LAY STAFF COLLECTIVE EMPLOYMENT AGREEMENT 2013

Hospitality industry
COMMISSIONER ROE	MELBOURNE, 22 JULY 2014

Application for variation of the Uniting Church Camping Lay Staff Collective Employment Agreement 2013 to remove uncertainty and or ambiguity.

[1] On 2 July 2014 the Uniting Church in Australia Property Trust (Victoria) T/A The Uniting Church of Australia Synod of Victoria and Tasmania (the Applicant or the Uniting Church) made an Application under Section 210 of the Fair Work Act 2009 (the Act) to vary theUniting Church Camping Lay Staff Collective Employment Agreement 2013 (the Agreement). The Agreement covers those employed by the Applicant to work for the Uniting Church of Australia Synod of Victoria and Tasmania, Commission for Mission, Uniting Church Camping Unit.

[2] Upon examining the Application and the supporting material it was apparent that the proposed variation had not been subject to a vote of all employees covered by the Agreement in the manner required for a variation to the Agreement under Section 210 of the Act. Upon further inquiry it became clear that in fact the Applicant was seeking to remove an ambiguity or uncertainty in the Agreement.

[3] Under Section 599 of the Act I have the power to make a decision in terms different from those originally applied for and under Section 586 documents or applications may be corrected or amended, and under Clause 6 of the Fair Work Commission Rules 2010 I may dispense with compliance with any of the requirements of the Rules of which the Forms are a part. I determine and direct that the Application in this matter is an application for a variation to the Agreement to remove uncertainty and or ambiguity pursuant to Section 217 of the Act. The Fair Work Commission should act without unnecessary formality to assist the parties to agreements. I am therefore prepared to deal with the amended application based upon the original forms and subsequent correspondence.

[4] There is some urgency to deal with this matter as one area of uncertainty and or ambiguity relates to the wage rates which should be applicable to employees from 1 July 2014 as a consequence of the Agreement provision for a 2% increase to operate from that date in circumstances where the Schedule of rates is allegedly not consistent with that quantum of increase. For these reasons I accepted that this was a matter which should be dealt with expeditiously.

[5] The Uniting Church corresponded with affected employees on 18 June 2014 setting out the variations sought to the Agreement and the reasons for it which Mr Mullen, Director People and Culture, described in the memo as to remove ambiguities and reflect the original intent of the Agreement. Given that the Application was now going to be considered under Section 217 of the Act rather than Section 210 and to ensure that I considered the views of affected employees on 9 July 2014 I requested that the employer provide a notice to all employees covered by the Agreement of whom they were aware. I requested that the correspondence advise employees of the application and the reasons for it; the time and place for the hearing of the matter and that an employee who had an objection to the proposed variation could contact my Chambers by email no later than 9am on 16 July 2014. The Uniting Church submitted that they complied with this request and no submissions were received.

Jurisdiction

[6] Section 217 of the Act provides:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWA 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 FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[7] It is necessary for me to determine first whether or not there is an ambiguity or uncertainty. If I am satisfied that there is an uncertainty then I must determine whether or not I should use my discretion to remove that uncertainty and then determine how the Agreement should be varied to remove the uncertainty. I am satisfied that the Applicant employer is covered by the Agreement and has the capacity to make the Application.

[8] The decision of Senior Deputy President Marsh in Beltana Highway Mining Pty Ltd 1sets out a useful summary of the relevant principles to be applied under Section 217. Those principles are as follows:

“[23] The following guidance can be discerned from authorities which have dealt with s.170MD(6) applications:

• before exercising its discretion to vary an agreement pursuant to s.170MD(6)(a) the Commission must first identify the ambiguity or uncertainty (PR917548 at para.28, Print M2454 at p.3, Print 2431 at para.8);



• the Commission may then exercise the discretion to remove the ambiguity or uncertainty by varying the agreement (PR917548 at para.28, PR903843 at para.7, Print M2454 at p.4);



• the first step i.e. identification of an ambiguity or uncertainty requires the determination of a “jurisdictional fact” (PR917548 at para.33, 199 CLR 135 at 148);



• the correct approach to identifying an ambiguity or uncertainty requires the making of an objective judgment as to whether, on the proper construction of the relevant provision of an agreement, the wording of that provision is susceptible to more than one meaning (PR917548 at para.49, PR903843 at para.7, Print M2454 at p.3);



• the words used in the provision are construed in their context including where appropriate the relevant parts of the parent award with which a complementary provision is to be read (Print Q2603 at para.30 per Munro J);



• s.170MD(6)(a) is not confined to the identification of which words of a clause give rise to an ambiguity or uncertainty. A combination of clauses may have that effect (Print R2431 at para.12);



• the Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention (Print M2454 at p.4, Print R2431 at para.14);



• the Commission’s task is to make an objective judgment as to whether the wording of a provision is susceptible to more than one meaning. It must avoid contentions that are “self serving” (PR924146 at para.20 and PR903843 at para. 7);



• the second step in the process is the exercise of discretion as to whether or not an agreement should be varied to remove the ambiguity or uncertainty (PR917548 at para.54);



• the Commission may not appropriately use its power to rewrite an agreement to install something that was not inherent to the agreement when it was made (Print Q2603 at para.29);



• the Commission is to have regard to the mutual intention of the parties at the time the agreement was made (PR917548 at para.54) and subsequent conduct of the parties;



• the Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made. The Commission is not limited by the form of the application before it (PR917548 at para.56);



• in looking at the context of a provision the Commission is entitled to consider (46 IR 128 at p.134):



• the effect of a prefatory statement made by the parties at the time when it was introduced into the award;



• the circumstances of the origin and use of the clause;



• the time when and the circumstances under which the instrument is made;



• the entire document of which the contentious provision is part or other documents with which there is an association;



• ideas that give rise to an expression in a document.




[24] In summary, the task is to make an objective judgment as to whether the wording of a provision(s) is susceptible to more than one meaning. If that judgment is in the affirmative then the Commission may exercise its discretion to decide whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.”

[9] I agree that this is an appropriate summary of the relevant principles.

The Alleged Uncertainty

[10] The first alleged uncertainty in the Agreement is as follows. Clause 6 of the Agreement provides as follows:

“6. Remuneration

Each employee's position and initial rate of pay (including salary packaging) will be set out in that employee's individual letter of engagement. Unless stated otherwise, the following general conditions apply:

6.1. Rates of pay -full-time, part-time and casual employees

Positions as described in Schedule B will be paid in accordance with the pay level as set out in Schedule C.

6.2. Rates of pay- Journey Based Field Staff

The rate of pay for journey based field staff will be in accordance with pay levels as set out in Schedule C.

6.3. Pay day arrangements

Employees are paid fortnightly normally on a Thursday by transfer to a bank account nominated by the employee. Payments may be made to up to four different bank accounts and to UCA Funds Management Development Fund accounts.

6.4. Salary review

An incremental increase of 2% will apply to all UC Camping staff from the first full pay period in the following months:

January 2014 July 2014

January 2015 July 2015

January 2016 July 2016

January 2017”

[11] The rates of pay in the table in Schedule C have rows for each classification and employment type as specified in Clause 6.1 and Schedule B and corresponding columns for 2013, January 2014, July 2014, January 2015 and July 2015. These columns relate to the salary increase times specified in Clause 6.4 quoted above. However, the rates in the column January 2014 are in fact 2.5% higher than the rates in the column 2013 not 2% higher as specified in Clause 6.4. The rates in the column July 2014 are increased by a further 2.5% rather than the 2% specified in Clause 6.4. The rates in the column January 2015 are increased by a further 2.5% rather than the 2% specified in Clause 6.4. The rates in the column July 2015 are increased by a further 2.5% rather than the 2% specified in Clause 6.4. There are no rates in Schedule C for January 2016, July 2016 and January 2017 even though increases are specified for those dates in Clause 6.4. The Agreement has a nominal expiry date of 16 December 2016.

[12] I am satisfied that there is uncertainty as to whether or not rates of pay should be increased as set out in Clause 6.4 or whether or not the rates of pay should be as set out in the table in Schedule C. Clause 6 is capable of more than one reading. The first reading is that the words “positions as described in Schedule B will be paid in accordance with the pay levels as set out in Schedule C” read in conjunction with the words “an incremental increase of 2% will apply to all UC Camping staff from the first pay period in the following months” means that the starting rate of pay (the 2013 rate) for each of the positions or classifications set out in the table in Schedule C is to be increased by 2% on the specified dates. The second reading is that the words “positions as described in Schedule B will be paid in accordance with the pay levels as set out in Schedule C” should be read as meaning that Schedule C specifies the starting rates of pay for each position or classification and the rates applicable at the dates or times specified in that table. Based on the second reading the rates in Schedule C are the operative rates rather than the increases specified in Clause 6.4 prior to January 2016.

[13] The first alleged uncertainty has been established.

[14] The second alleged uncertainty relates to rates of pay for Journey based field staff. Clause 6.2 quoted earlier provides that the rate of pay for journey based field staff will be in accordance with pay levels as set out in Schedule C. The rates in Schedule C under the heading “Journey Program wage rates” specify the rates for each classification for a program day, half program day and rate per hour. Clause 6.4 provides that an incremental increase of 2% will apply to all UC Camping staff from the first full pay period in each of a number of specified dates. The alleged uncertainty is that Schedule C might be read as taking precedence and specifying that the rates of pay for journey based field staff does not increase during the life of the Agreement. This is particularly the case when read in conjunction with the other rates table in Schedule C which shows the increased rates at particular dates. Alternatively Clause 6.4 might be read in conjunction with the rates specified in Schedule C as requiring that the rates in Schedule C be increased by 2% at each of the specified dates.

[15] There is no doubt that journey based field staff are encompassed by the expression “all UC Camping staff” because the expression journey program employees is defined in the Agreement and it is clear from that definition that they are UC Camping employees. This uncertainty is said to arise because the other rates in Schedule C show how the rates increase at certain dates and this might lead a reader to assume that the Journey Program rates do not increase.

[16] I am not satisfied that there is any uncertainty or ambiguity. I am satisfied that Clause 6.4 requires that the rates specified in Schedule C be increased by the amounts specified in Clause 6.4. There is nothing to prevent the employer from publishing a table of rates of pay for Journey Program employees that shows how the rates specified in Schedule C will increase in accordance with Clause 6.4. The second alleged uncertainty or ambiguity has not been established.

[17] I have no doubt that the Agreement should be varied to remove the first uncertainty which I have found exists. If the variation does not occur the employer and the employees are uncertain as to the rates of pay that should apply. This could lead to unnecessary disputation and litigation.

[18] In approving the Agreement Deputy President Sams noted:

“Rates of pay are to be incrementally increased by 2% from the first full pay period in January 2014, July 2014, January 2015, July 2015, January 2016, July 2016 and January 2017.” (Print PR545538 paragraph 3)”.

[19] I am satisfied that if it was the mutual intention of the parties that the rates of pay should be increased by 2.5% rather than 2% in January 2014, July 2014, January 2015 and July 2015 and then by 2% in January 2016, July 2016 and January 2017, Clause 6.4 would have been worded to that effect. The fact that the rates in Schedule C only specify the increased rates for some dates and not for all of the increases specified in Clause 6.4 of the Agreement strongly suggests that it is Clause 6.4 which reflects the mutual intention of the parties in respect to the wage increases applicable under the Agreement. The plain reading of the words of Clause 6 and the headings in that clause support this reading. Schedule C gives operation and specification to Clause 6. I am satisfied that Clause 6 should be read as meaning that Clause 6.1 specifies that Schedule C links the classification or positions covered by the Agreement to particular rates of pay and then the increases specified in Clause 6.4 are applied to those rates.

[20] I am satisfied that the rates in Schedule C in the column 2013 are the correct starting rates. I am satisfied that the rates in the columns January 2014, July 2014, January 2015 and July 2015 should reflect the increases to the rates in column 2013 that are specified in Clause 6.4. The uncertainty that I have found exists should be rectified by replacing the current rates in those columns with rates that reflect the 2% increases specified in Clause 6.4 of the Agreement.

[21] I am also satisfied that if I simply vary the Agreement to correct the rates in Schedule C I may be creating some confusion and uncertainty in that I will be highlighting the actual rates payable in January 2014, July 2014, January 2015 and July 2015 but not saying anything about the rates payable to journey program employees or the increases payable generally in January 2016, July 2016 and January 2017. I therefore consider it appropriate to vary the table in Schedule C to ensure that the rates are consistent with Clause 6.4 and also to add a note at the end of Clause 6.4 as follows:

“Note the rates set out in the Table headed “26. Schedule C – Rates of pay” do not include the wage increases which shall apply as specified in this clause in January 2016, July 2016 and January 2017. The rates specified in the table in Schedule C headed “Journey Program wage rates” are the 2013 rates and they do not include the wage increases which shall apply as specified in this clause.”

[22] The Applicant seeks that the variation operate from 1 July 2014. I consider that this is appropriate given that a wage adjustment is applicable from the first pay period in July 2014.

COMMISSIONER

 1   PR932468

Printed by authority of the Commonwealth Government Printer

<Price code C, AE405799  PR553330>