Valley Park Farm Pty Ltd

[2012] FWA 3918

[2012] FWA 3918

FAIR WORK AUSTRALIA

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 10 - Application to vary transitional instrument to remove ambiguity

Valley Park Farm Pty Ltd
(AG2012/3948)

Agricultural industry
COMMISSIONER LEWIN	MELBOURNE, 9 MAY 2012

Transitional instrument - application to vary - ambiguity - uncertainty - intention of agreement makers - contradiction in terms of agreement

[1] Valley Park Farm Pty Ltd has applied to vary the terms of the Valley Park Farm Employee Collective Workplace Agreement 2008 (the Agreement) under Schedule 3, Item 10 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The Agreement applies to work performed on poultry farming operations.

[2] The Agreement is a transitional instrument for the purposes of the Transitional Act. Consequently, the relevant statutory provisions governing the determination of the application are set out in Schedule 3 of the Transitional Act as set out below:

“10 All kinds of transitional instrument: variation to remove ambiguities etc.

(1) On application by a person covered by a transitional instrument, FWA may make a determination varying the instrument:

(a) to remove an ambiguity or uncertainty in the instrument; or

(b) to resolve an uncertainty or difficulty relating to the interaction between the instrument and a modern award; or

(c) to remove terms that are inconsistent with Part 3-1 of the FW Act (which deals with general protections), or to vary terms to make them consistent with that Part.

Note: For variation of a transitional instrument to resolve an uncertainty or difficulty relating to the interaction between the instrument and the National Employment Standards, see item 26.

(2) A variation of a transitional instrument operates from the day specified in the determination, which may be a day before the determination is made.”

[3] The variations sought to the terms of the Agreement are in respect of clauses 16.7 and 29. The existing provisions and changes sought are set out below:

“Amend clause 16.7

From:

“Hours of work commence after the employee has completed the Employers bio-security requirements as published from time to time. Due to such requirements, an employee shall be paid an additional 10 mins to “shower on” at the start of each day/ shift.

To:

Hours of work commence after the employee has completed the Employers bio-security requirements as published from time to time. In the event of such requirements, an employee shall be paid an additional 10 mins to “shower on” at the start of each day/ shift.

Amend clause 29

From:

All employees are required to shower on at the commencement of the rostered shift. Where an employee is required to transfer from one site to another the employee shall shower off prior to leaving the site and shower on upon entering the new site.

To:

The requirement to shower on/off at the commencement of a shift, or upon transferring from site to site, will be published from time to time in our biosecurity guidelines, located in our Quality Assurance System.”

[4] The ambiguity or uncertainty in the terms of the Agreement said to be the basis of the application are made out in the grounds stated in paragraph 5 of the application:

“1. The grounds upon which Valley Park Farm relies in seeking the variation is that we wish to remove ambiguity in the instrument.

2. Clause 16.7 of the approved agreement identifies that biosecurity requirements [are] published from time to time.

3. These requirements are not indefinite and we are republishing our biosecurity guidelines to state that we do not require all employees to shower on at the commencement of a rostered shift as specified in clause 29 of the Collective Agreement.

4. Only those employees whom work within our livestock department will be required to shower on at the commencement of a rostered shift.”

[5] Subsequent to the receipt of the application, I directed Valley Farms to serve a copy of the application on all of the employees whose employment is covered by the Agreement. Those directions have been complied with. No representations have been received from any of the employees.

[6] I am satisfied that there is uncertainty of meaning associated with the terms of clauses 16.7 and 29. That uncertainty is common to both clauses and concerns the intended effect of the Agreement which is evident when the terms of the two clauses are considered as a whole. My construction of the clear intention of the Agreement is as follows:

• The requirement to “shower on” and “shower off” for reasons of biosecurity at poultry farm operations will vary according to biosecurity procedures determined from time to time.



• When employees are required to “shower on” or “shower off” accordingly the employee is entitled to be paid for an additional ten minutes.

[7] In my view, the Agreement expresses a requirement which is contradictory, such that employees are required to “shower on” and “shower off” regardless of the biosecurity procedures in force at any particular time and consequently the effect of the terms of the provisions subject to the application is that employees are to be paid for an extra ten minutes regardless of whether the biosecurity procedures require them to “shower on” or “shower off” in any particular circumstances.

[8] I will vary the agreement to give certain effect to the clear intention of the Agreement, that employees will be required to “shower on” and “shower off” only in accordance with prevailing biosecurity procedures as promulgated from time to time and will be entitled to be paid for an additional ten minutes when those procedures require them to do so. The effect of the variation will be that the employer will not be required to pay employees for an additional ten minutes when the prevailing biosecurity policies do not require an employee to “shower on” and “shower off”. I note that the text of the determination varying the Agreement will differ from that proposed in the application in order to achieve the necessary certainty in accordance with my conclusions set out above.

[9] A determination will issue.

COMMISSIONER

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