Victorian Hospitals’ Industrial Association

[2020] FWCA 1107

[2020] FWCA 1107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

Victorian Hospitals’ Industrial Association
(AG2019/4706)

VICTORIAN COMMUNITY HEALTH SECTOR (AUDIOLOGISTS, DIETITIANS, PHARMACISTS & PSYCHOLOGISTS) 2018-2021

Health and welfare services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 2 MARCH 2020

Application for variation of the Victorian Community Health Sector (Audiologists, Dietitians, Pharmacists & Psychologists) 2018-2021, Schedule C – Rates of Pay and Allowances.

[1] This is an application pursuant to section 217 of the Fair Work Act 2009(Cth) (the Act) filed by Victorian Hospitals’ Industrial Association (VHIA) on behalf of the Employers to the Victorian Community Health Sector (Audiologists, Dietitians, Pharmacists & Psychologists) 2018-2021 1 Agreement (the Agreement), to vary the Agreement in order to remove an ambiguity or an uncertainty.

[2] The Agreement was approved by this Commission on 1 August 2019 with an operative date of 23 August 2019. It is a multi-employer agreement that covers twenty-six community health sector employers. The VHIA represents those employers covered by the Agreement.

[3] The Health Services Union-Victoria No. 4 Branch (HSU) is an employee organisation covered by the Agreement.

[4] The variation sought to remove a drafting error which has created ambiguity and uncertainty in the application of the wage rates in the Agreement.

[5] The matter was listed for conference on 17 December 2019. The parties filed substantial joint written submissions on 10 January 2020. To avoid unnecessary attendance by the parties at the Fair Work Commission, the parties were notified unless they sought to be heard I would determine the matter on the materials before me. The parties advised that they had no objection to the matter being determined on the papers.

[6] In their joint submissions the parties provide that they became aware an ambiguity or uncertainty existed in the approved version of the Agreement with respect to the rates of pay for the Agreed Grade 2 Uplifts contained in Schedule C of the Agreement.

[7] They submit that the calculations of the Agreed Grade 2 Uplifts and the operation of the wage increases under the Agreement read together give rise to the ambiguity and uncertainty that currently exists within the Agreement.

[8] As a result of the ambiguity and uncertainty the parties have received queries from over 50% of Employers with the principal concern being the uncertainty as to the calculation of the Agreed Grade 2 Uplifts and operation of the wage increases under the Agreement.

Jurisdiction

[9] Section 217(1) of the Act provides that the Commission 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

[10] If the Commission varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement. 3

[11] In support of their submissions the parties rely on Tenix Defence Pty Limited 4 a decision of the Full Bench of the Australian Industrial Relations Commission outlining what was considered to be the proper approach to be taken when determining an application to remove an ambiguity or uncertainty pursuant to s.170MD(6) of the Workplace Relations Act 1996. The terms of the provision are similar to s.217 of the Act. The Full Bench held that:

“[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

[29] The first part of the process- identifying an ambiguity or uncertainty- involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox - CFMEU (CSR Timber) Enterprise Agreement 1997:

“The identification of whether or not a provision in an instrument can be said to contain an ‘ambiguity’ requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the ‘parent’ award with which a complimentary provision is to be read.”

[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.

[31] 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.

[32] Once an ambiguity or uncertainty has been identified it is a matter of discretion as to 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”.

(references omitted)

[12] In summary the parties submit the Commission has discretion as to whether the Agreement should be varied to remove the ambiguity or uncertainty and, in exercising that discretion, the Commission is to have regard to the mutual intention of the parties at the time the Agreement was made. They further submit that where ambiguity and uncertainty is not confined to identification of words, a combination of clauses may have that effect.

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

Alleged Uncertainty or Ambiguity

[14] The alleged uncertainty in the Agreement relates to the rate used for Agreed Grade 2 Uplifts being the 25 January 2017 rate contained in Schedule 2 of the Victorian Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Single Enterprise Agreement 2017-2021 (Public Sector Agreement). The rate should have been the 25 January 2018 rate contained in Schedule 2, of which the starting point under the Agreement would have been 1 June 2018. 5

[15] Clause 32 of the Agreement sets out the percentage increases to the rates of pay under the Agreement. The rates of pay to which the percentages apply are set out in Schedule C of the Agreement. 6

[16] Schedule C also contains a set of Agreed Grade 2 uplifts for the following classifications:

(a) Grade 2 Audiologist, Years 1-3,

(b) Grade 2 Dietitians, Years 1-3,

(c) Grade 2 Pharmacists, Years 1-3, and

(d) Grade 2 Psychologists, Years 1-4. 7

[17] The parties submit it was agreed as an outcome of bargaining that the group specified in paragraph [16] above would receive parity with the Public Sector Agreement. Further the general increases provided for in clause 32 of the Agreement would also be applied to the parity rate of pay. 8

[18] The parties submit the mutual intention of those negotiating the Agreement should be considered and can be gleaned from the Attachments B, C and D filed with the Form F1 Application, being the Victorian Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Single Interest Enterprise Agreement 2017-2021, Settlement Proposal for Dietitians, Audiologists and Psychologists and the VHIA salary circular, respectively. 9

[19] The parties submit that the rival contention, may result in employee’s who perform work in the classifications subject to the Agreed Grade 2 outcome, being paid less than the agreed wages outcome set out in clause 32 of the Agreement. Further the parties contend that the intention of the parties to the Agreement was to ensure parity with the Public Sector Agreement for the Agreed Grade 2 outcome. They submit the effect of the Agreement being that some employees will be paid less than the agreed wages outcome set out in clause 32 and Schedule 2 of the Agreement was not intended by anyone. They also submit the existence of a rival contention further supports a positive finding that an ambiguity or uncertainty exists, enlivening the Commission’s jurisdiction. 10

[20] The Application seeks to vary the Agreement rates of pay for the Agreed Grade 2 Uplifts as contained in Schedule C of the Agreement. The contention of the parties concerning the existence of an ambiguity is not self-serving, there is clearly rival contentions about the application of the clauses which have been advanced by the parties.

[21] On a plain reading the application of the percentage increases in Clause 32 of the Agreement to the rates contained within Schedule C - Rates of Pay and Allowances, specifically those rates to which the Agreed Grade 2 Uplift applies, result in an uncertainty and ambiguity. In the current circumstances on a plain reading of clause 32 and Schedule C it is not abundantly clear that those increases contained within clause 32 were to be applied to the 25 January 2018 rates within the Public Sector Agreement of which the starting point would have been 1 June 2018. If the variation sought is not granted then it would remain unclear that it was an agreed outcome that those to which the Agreed Grade 2 Uplift applies were to receive parity with the Public Sector Agreement. The unintended outcome being that the relevant clauses would have a detrimental effect on those classifications contained within Schedule C to which the Agreed Grade 2 Uplift applies.

[22] Having regard to the material submitted by the parties the Commission accepts that there is an uncertainty and ambiguity of the kind envisaged by s.217 of the Act. Having made this finding it is appropriate that the Commission approve the variation to Schedule C - Rates of Pay and Allowances within the Agreement and annexed to this decision, to rectify the uncertainty and ambiguity.

[23] Accordingly, the application is granted and the variation, as sought, will operate from 2 March 2020.

[24] The consolidated version of the Victorian Community Health Sector (Audiologists, Dietitians, Pharmacists & Psychologists) 2018-2021 Agreement, as varied, is attached to this decision.

COMMISSIONER

 1   AE504890

 2 Section 217 (1) Fair Work Act (Cth) 2009

 3 Section 217(2) Fair Work Act (Cth) 2009

 4   PR917548

 5   Joint Submissions, 10 January 2020 at [6]

 6   Ibid, [10]

 7   Ibid, [12]

 8   Ibid, [13]

 9   Ibid, [17]

 10   Ibid, [19]-[22]

Printed by authority of the Commonwealth Government Printer

<AE504890  PR717132>