Ventia Australia Pty Limited
[2021] FWCA 3851
•2 JULY 2021
| [2021] FWCA 3851 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Ventia Australia Pty Limited
(AG2021/5659)
VENTIA (MILLMERRAN POWER STATION) ENTERPRISE AGREEMENT 2021
Manufacturing and associated industries | |
DEPUTY PRESIDENT ASBURY | BRISBANE, 2 JULY 2021 |
Application for variation of the Ventia (Millmerran Power Station) Enterprise Agreement 2021.
[1] Ventia Australia Pty Limited has made an application under s.217(1) of the Fair Work Act 2009 (the Act) to vary the Ventia (Millmerran Power Station) Enterprise Agreement 2021 (the Agreement) to remove an ambiguity or uncertainty in Appendix 4 at clause A4.2 of the Agreement. The Agreement was approved by the Commission in a Decision 1 issued on 2 July 2021.
[2] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and the Electrical, Energy and Services Division, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are bargaining representatives for the Agreement and are covered by the Agreement.
[3] The ambiguity or uncertainty is said to be found in Appendix 4 at clause A4.2 of the Agreement, which sets out wage rates for Apprentices. Clause A4.2 of the Agreement contains a table setting out the minimum weekly wage for apprentices, applying the relevant stage of apprenticeship percentage to the VSMT Level 1 Tradesperson rate.
[4] During the course of seeking approval of the Agreement, a typographical error was identified in that headings in the top row of the table contains a reference to “Year 10 or less” which appears three times in the headings to the second, third and fourth columns of the table. The headings to the third and fourth columns of the table should respectively refer to “Year 11 or less” and “Year 12 or less”. The Applicant contends that this typographical error creates ambiguity or uncertainty which the application seeks to remove.
Relevant Legislation
[5] The application has been made under s.217 of the Act, which provides 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.”
Consideration
[6] An ambiguity or uncertainty must be identified as a jurisdictional fact before the Commission’s power to vary an Agreement is enlivened under s.217 of the Act. 2 There is no clear test for determining when an ambiguity exists3 and the Commission must make an objective assessment about whether, on the proper construction of the Agreement, it is susceptible to more than one meaning.4 Even if an ambiguity or uncertainty is found it remains a discretionary matter whether the Commission will approve a variation to the Agreement having regard to the mutual intention of the parties at the time of making the Agreement.5
[7] On the basis of the material before me I am satisfied that there is an ambiguity or uncertainty on the basis that the headings of the table contained at Appendix 4, clause A4.2 are unclear with the result that the applicable wage rates are rendered susceptible to more than one meaning. As currently drafted, the table provides for ‘Year 10 or less’ wages in three different columns, with different percentages in each column.
[8] I am satisfied that the variation sought reflects the proper construction of the Agreement. The views of the AMWU and the CEPU were sought in relation to this application, and no objections were received.
Conclusion
[9] I am satisfied that it is appropriate to vary the Agreement to resolve an ambiguity or uncertainty. I am also satisfied that the variation proposed is appropriate, will not involve rewriting the Agreement, and reflects the proper construction of the Agreement. It is appropriate that the discretion to vary the Agreement to resolve the ambiguity or uncertainty is exercised.
[10] I Order that the Agreement be varied as follows:
(i) By deleting the existing wages table at Appendix 4, clause A4.2; and
(ii) By inserting the amended wages table in the following terms:
Stage of Apprenticeship | Year 10 or less | Year 11 or less | Year 12 or less | Adult Apprenticeship |
First | 44% | 47.4% | 50.8% | 75.7% |
Second | 57% | 57% | 58.9% | 85.3% |
Third | 75% | 75% | 75% | 87.9% |
Fourth | 90% | 90% | 91.4% | 91.4% |
[11] The variations will operate from 2 July 2021, immediately upon the approval of the Agreement on that date. An Order 6 giving effect to this decision will be separately issued. A consolidated version of the Agreement is attached.
DEPUTY PRESIDENT
1 [2021] FWCA 3850.
2 Coinvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [44].
3 Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 per Gray J.
4 Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49] per Ross VP, O’Callaghan SDP and Foggo C.
5 Ibid at [32].
6 PR731292.
Printed by authority of the Commonwealth Government Printer
<AE512071 PR731291>
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