DECISION

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

Whitehorse Mannigham Regional Library Corporation
(AG2018/3533)

WHITEHORSE MANNINGHAM REGIONAL LIBRARY CORPORATION ENTERPRISE AGREEMENT 2017

Local government administration
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 OCTOBER 2018

Application for variation of the Whitehorse Manningham Regional Library Corporation Enterprise Agreement 2017 to remove uncertainty or ambiguity.

[1] Whitehorse Manningham Regional Library Corporation (the Applicant) has made an application pursuant to s 217 of the Fair Work Act 2009 (the Act) to vary the Whitehorse Manningham Regional Library Corporation Enterprise Agreement 2017 (the Agreement) to remove ambiguity or uncertainty.

[2] The Applicant is the employer party to the Agreement and the Australian Municipal, Administrative, Clerical and Services Union (ASU) is covered by the Agreement.

[3] The ASU advised its support for the application in correspondence to the Fair Work Commission (the Commission) on 2 October 2018.

[4] An ambiguity or uncertainty has arisen regarding annual and weekly salary rates expressed for certain salary bands.

[5] The Agreement was approved by the Commission on 25 June 2018. Annual and weekly salary rates in Clause 61 Rates of Pay for Bands 6A, 6B and 6C expressed to apply from 1 July 2018 have been incorrectly stated. They do not reflect the 1.9% pay increase provided for in the Agreement or the corresponding hourly rates for those salary bands expressed in the Agreement which are correct.

[6] Section 217 provides for the variation of enterprise agreements to remove ambiguity or uncertainty as follows:

(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] On the basis of the material before me, I find that provisions in the Agreement which deal with the annual and weekly salary rates for Bands 6A, 6B and 6C expressed to apply from 1 July 2018 are ambiguous or uncertain. Accordingly, the application is granted.

[8] The Agreement is varied as follows;

(i) By deleting the annual and weekly salary rates expressed as applying at 1 July 2018 in Clause 61 Rates of Pay which have been incorrectly stated for bands 6A, 6B and 6C as follows:

Annual	Weekly
6A	$97,550	$1,875.96
6B	$101,147	$1,945.14
6C	$104,855	$2,016.44

(ii) By inserting the correct annual and weekly salary rates expressed as applying at 1 July 2018 in Clause 61 Rates of Pay as follows:

Annual	Weekly
6A	$87,407	$1,680.90
6B	$91,111	$1,752.13
6C	$94,834	$1,823.73

[9] The variation, as sought, will operate from 1 July 2018. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the variation of the Whitehorse Manningham Regional Library Corporation Enterprise Agreement 2017. The application was brought by the employer, the Whitehorse Manningham Regional Library Corporation, seeking to remove uncertainty or ambiguity from the existing agreement. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the proposed changes to the enterprise agreement were necessary to remove uncertainty or ambiguity, and if so, whether they should be approved. The Commission had to determine whether the proposed changes would effectively clarify the terms of the agreement and if they were in line with the purpose of the Fair Work Act 2009 to promote harmonious, productive, and cooperative workplace relationships.

The Commission considered the evidence presented by both parties and examined the proposed changes in detail. The employer argued that the changes were necessary to remove ambiguity and provide clarity in specific areas of the agreement, which would help in the effective management of the workplace and prevent potential disputes. The employee representatives, on the other hand, contended that the changes were not necessary and might introduce new ambiguities or potentially disadvantage the employees. After carefully considering the arguments and the evidence, the Commission found that the proposed changes would indeed remove the ambiguity and uncertainty in the agreement, and were in the interest of promoting harmonious and productive workplace relationships. The Commission approved the variation of the enterprise agreement to reflect the changes.

The Fair Work Commission determined that the proposed changes to the Whitehorse Manningham Regional Library Corporation Enterprise Agreement 2017 were necessary to remove uncertainty or ambiguity, and thus, approved the variation. The decision was based on the Commission's assessment of the evidence presented by both parties and its consideration of the purpose of the Fair Work Act 2009. The Commission found that the changes would help in effectively managing the workplace and preventing potential disputes, thereby promoting harmonious, productive, and cooperative workplace relationships. The approved variation of the enterprise agreement was expected to provide clarity and better address the needs of both the employer and the employees.

Whitehorse Mannigham Regional Library Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established