1
Fair Work
Act 2009
s.217—Enterprise agreement
Aged Care Services Australia Group Pty Ltd
(AG2017/165)
AGED CARE SERVICES AUSTRALIA GROUP PTY LTD - NURSES
AND AGED CARE EMPLOYEES ENTERPRISE AGREEMENT 2014
Tasmania
DEPUTY PRESIDENT WELLS HOBART, 2 MARCH 2017
Application for variation of the Aged Care Services Australia Group Pty Ltd-Nurses and
Aged Care Employees Enterprise Agreement 2014.
[1] On 20 January 2017, Aged Care Services Australia Group Pty Ltd (ACSAG) made
application pursuant to s.217 of the Fair Work Act 2009 (the Act) to vary clause 5 ‘Coverage’
of the Aged Care Services Australia Group Pty Ltd - Nurses and Aged Care Employees
Enterprise Agreement 20141 (the Agreement) alleging that clause is ambiguous. The parties
bound by the Agreement, as approved on 28 October 20142 are ACSAG, the Australian
Nursing and Midwifery Federation of Australia (ANMF), the Health Services Union of
Australia (HSU) and the employees of ACSAG.
[2] ACSAG contends the current wording of clause 5 is ambiguous and that the clause
should be varied to clearly define the employees covered as being employees of ACSAG
“employed in Tasmania”.
[3] On 1 February 2017 the ANMF provided written submissions3 in relation to the
application. Likewise, on 7 February 2017 the HSU provided written submissions.4 Both the
ANMF and the HSU oppose the application made by ACSAG, submitting that the Agreement
contains no ambiguity or uncertainty.
[4] Clause 5 of the Agreement states:
“5 Coverage
This Agreement shall cover:
(a) Aged Care Services Australia Group Pty Ltd; and
[2017] FWCA 1201 [Note: This decision has been quashed - refer to Full
Bench decision dated 23 May 2017 [[2017] FWCFB 2806]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb2806.htm
[2017] FWCA 1201
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(b) Nurses and Aged Care employees employed by Aged Care Services
Australia Group Pty Ltd as classified in Schedule 3 of this Agreement; and
(c) subject to the requirements of the Fair Work Act 2009, the Australian
Nursing and Midwifery Federation Tasmanian Branch (‘ANMF’), and the
Health Service[s] Union, Tasmania No. 1 (‘HACSU’).”
[5] Section 217 of the Act provides:
“(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.”
[6] Following the submissions of the ANMF and the HSU, ACSAG provided its written
submissions5 on 10 February 2017. The Commission wrote to the parties on 21 February 2017
inviting any further written submissions to be made by Friday 24 February 2017. Both the
ANMF and the HSU indicated they did not wish to make further submissions. The
Commission offered the parties an opportunity to be heard in person, however the parties did
not take up that offer. Accordingly I have determined the matter ‘on the papers’.
The issue to be determined
[7] In order for the jurisdiction of the Commission to be enlivened to vary an agreement in
accordance with s.217 of the Act, it must be determined that an ambiguity or uncertainty
exists.
[8] If such an ambiguity or uncertainty is found, should the Commission exercise its
discretion to vary the Agreement.
The submissions
[9] It is common ground between the parties that the presence of an ambiguity or
uncertainty must be found to enliven the jurisdiction of the Commission in exercising the
power to vary an agreement.
[10] Both the ANMF and the HSU argue that the coverage of the Agreement, set out in
clause 5, is plain and is not susceptible to more than one meaning. The ANMF submits that
the employer’s intended coverage of the Agreement is not relevant to whether ambiguity
exists and that the Agreement merely being silent on geographical coverage does not establish
an ambiguity.
[11] Further the ANMF contends that the Commission has no power to correct mistakes or
errors in Agreement (see Australian Nursing Federation re Healthe Care (Vic Hospitals) and
ANF and HSU Nurses Collective Agreement 2008 [2011] FWA 2430 (21 April 2011)).
[2017] FWCA 1201
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[12] The HSU submits that previous decisions6 of this Commission focus on whether the
words of a provision in an enterprise agreement themselves are certain and unambiguous.
[13] ACSAG’s submissions provide that when sub clause (b) of clause 5 is considered in
context with other clauses and Schedule 3 of the Agreement, it is clear that an ambiguity
arises. This is said to be because the Agreement may cover only ACSAG employees in
Tasmania in the relevant classifications, whilst the sub clause itself does not specifically
identify geographical coverage.
[14] ACSAG contends that as it employs people throughout Australia, sub-clause (b) of
clause 5 of the Agreement should include the words “employed in Tasmania” at the end of
that sentence. It submits that Schedule 1 (through clause 4 ‘Scope etc’of the Agreement)
identifies the scope of application to employees classified in that Schedule; and Schedule 3,
through its identification of qualifications under the Health Practitioner Regulation National
Law (Tasmania) Act 2010; clearly intends to cover employees relevantly classified and who
are employed in Tasmania only.
[15] In support of this argument ACSAG also relies on two clauses within the Agreement
that deal with long service leave and public holidays to which I refer later. These clauses
clearly identify an entitlement to leave and public holidays, in accordance with Tasmanian
statute.
[16] Further, ACSAG states that when applying the principles of statutory interpretation,
once an ambiguity is found to exist, evidence of surrounding circumstances may be
considered. ACSAG seeks to rely on the pre-approval steps undertaken with the Agreement
which included the filing of a Form F16 and F17 by ACSAG and the filing of Form F18s by
the Tasmanian branches of the ANMF and the HSU. ACSAG advances that the evidence
surrounding the approval process clearly shows that the application of the Agreement to
Tasmanian employees of ACSAG was a matter in common contemplation and was a common
intention of the parties.
[17] ACSAG submits that whilst the AMNF and the HSU argue that clause 5 of the
Agreement is not susceptible to more than one meaning, they have limited their submissions
to the wording of clause 5 in isolation and not in the broader context of the Agreement as a
whole.
Consideration
[18] In determining this matter I have had regard to previous decisions of this Tribunal,
including its predecessors. In Tenix Defence Systems Pty Limited Certified Agreement 2001-
20047 (Tenix) the Full Bench of the Australian Industrial Relations Commission dealt with
provisions under s.170MD(6) of the Workplace Relations Act 1996, those being the
provisions which are now contained within s.217 of the Act. In Tenix the Full Bench dealt
with the proper construction and the application of the section as follows:
“[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.
[2017] FWCA 1201
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[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 of a clause which give rise to an ambiguity or uncertainty. A
combination of clauses may have that effect. [my emphasis]
[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.
[33] We agree with Tenix that the first step in dealing with a s.170MD(6)(a)
application – the identification of an ambiguity or uncertainty – requires the
determination of a ‘jurisdictional fact’. In Corporation of the City of Enfield v
Developmental Assessment Commission the joint judgment of Gleeson CJ, Gaudron,
Gummow, Kirby and Hayne JJ described the term ‘jurisdictional fact’ in these terms:
‘The term ‘jurisdictional fact’ (which may be a complex of elements) is often
used to identify that criterion, satisfaction of which enlivens the power of the
decision-maker to exercise a discretion.’
[34] Similarly in re: CFEMU – Termination of Bargaining Periods, Lee and
Madgwick JJ said:
‘…the question presents as one of whether the Commission may have erred as
to a ‘jurisdictional fact’, that is, the existence or non-existence of a state of
affairs which was a statutory precondition to the Commission acting…’
[35] In the context of s.170MD(6)(a) the Commission must first identify the
existence of an ambiguity or uncertainty before exercising its discretion to vary the
agreement. We agree with the Full Bench in Re: CFMEU Appeal which described the
existence of an ambiguity or uncertainty as ‘a necessary statutory prerequisite to any
variation being made.’” [references omitted]
[2017] FWCA 1201
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[19] In Re Linfox – CFMEU (CSR Timber) Enterprise Agreement 19978 Munro J
relevantly held at paragraph [29] that:
“In other words, the power must be exercised to remove any ambiguity. It may not
appropriately be used to re-write an agreement to install something that was not
inherent to the agreement when it was made”.
[20] Also relevant to my determination are the findings of the Full Bench per Ross VP,
Polites SDP and Grimshaw C in The Public Transport Corporation of Victoria and Australian
Rail, Tram and Bus Industry Union and others Print M2454, 7 June 1995, as follows:
“In our view the approach adopted by his Honour Gray J. in the PKIU case is a sensible
one and should be applied by the Commission in dealing with applications to vary
agreements for the purpose of removing ambiguity or uncertainty. Accordingly the
Commission would generally err on the side of finding an ambiguity or uncertainty in
circumstances where there are rival contentions advanced before it and an arguable
case can be made out for more than one contention.
Once an ambiguity or uncertainty has been identified it is then 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 factors to which the Commission
should have regard would include the intention of the parties at the time the
Agreement was made. Such an intention may be discerned from the circumstances at
the time and the subsequent conduct of the parties.”
[21] Relevantly, the following clauses form part of the Agreement:
“27. PUBLIC HOLIDAYS
Entitlement To Paid Public Holidays
(1) Subject to the provisions of this Agreement employees, other than
casual employees, are entitled to paid public holidays for Christmas Day,
Boxing Day, New Year’s Day, Australia Day, Hobart Regatta Day (South of
Oatlands), Eight Hours Day, Good Friday, Easter Monday, Anzac Day,
Queen’s Birthday, Show Day, and the first Monday in November where Hobart
Regatta Day is not observed, or such other day(s) which may be observed in
the locality in lieu of or made additional to any of the aforementioned holidays,
as per the Tasmanian Statutory Holidays Act 2000 as amended. [my emphasis]
(2) …
38. LONG SERVICE LEAVE
(1) Long Service Leave is a matter provided for in the NES (Division 9 –
Long Service Leave). Where there is an inconsistency between this Clause and
the NES, and the NES provides a greater benefit, the NES provision will apply
to the extent of the inconsistency.
[2017] FWCA 1201
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(2) The provisions of the Long Service Leave Act 1976 (as amended) (“the
Act”) will apply to employees covered by this agreement. [my emphasis]
(3) …”
[22] I acknowledge that clauses 27 and 38 of the Agreement reproduced above clearly
indicate the application of Tasmanian statute, that is, the Long Service Leave Act (Tas) 1976
and the Statutory Holidays Act 2000 which provides for both regional and Statewide public
holidays.
[23] Having applied the principles espoused in these authorities I am satisfied that, on an
objective assessment, and considering the context of clause 5 and the combination of
Schedule 3, and clauses 27 and 38, the employees to be covered by the Agreement is
susceptible to more than one meaning and is therefore ambiguous. It is not necessary to
restate here the considerable submissions made on this point.
[24] It is clear from the documentation provided by ACSAG with its submissions that the
voting and approval process undertaken with the Agreement in 2014 involved only ACSAG’s
Tasmanian employees, and that neither the ANMF nor the HSU raised any concerns involving
the coverage of the Agreement, or the voting process for its approval.
[25] ASCAG have established, on an objective assessment, an arguable case for the
contention that coverage of the Agreement can be read to include only those of its employees
classified under Schedule 3of the Agreement and employed within Tasmania.
[26] I am also satisfied that on reading clause 5, in isolation of the other provisions of the
Agreement, that a conclusion could be drawn that the Agreement covers ACSAG employees
classified under Schedule 3 of the Agreement, regardless of where they work.
[27] As I have determined that ambiguity and/or uncertainty exists as to clause 5(b) of the
Agreement, I am of the view it is appropriate for the Commission to exercise its discretion
under s.217 to remove that ambiguity or uncertainty, to provide clarity to all parties covered
by the Agreement.
Conclusion
[28] In conclusion, I am satisfied that the intention of the parties was that the Agreement
would cover employees of ACSAG as described in Schedule 3 of the Agreement and that are
employed in Tasmania. It is appropriate to vary the Agreement by inserting the words
“employed in Tasmania” at the end of sub clause (b) of clause 5.
[29] Accordingly, the application is granted and the variation, as sought, will operate from
today.
[30] Clause 5 of the Aged Care Services Australia Group Pty Ltd – Nurses and Aged Care
Employees Enterprise Agreement 2014 will now provide as follows:
“5 Coverage
This Agreement shall cover:
[2017] FWCA 1201
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(a) Aged Care Services Australia Group Pty Ltd; and
(b) Nurses and Aged Care employees employed by Aged Care Services
Australia Group Pty Ltd as classified in Schedule 3 of this Agreement
employed in Tasmania; and
(c) subject to the requirements of the Fair Work Act 2009, the Australian
Nursing and Midwifery Federation Tasmanian Branch (‘ANMF’), and the
Health Service[s] Union, Tasmania No. 1 (‘HACSU’).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, AE410864 PR590634
1 AE410864
2 [2014] FWCA 7660
3 Exhibit ANMF1
4 Exhibit HSU1
5 Exhibit Applicant1
6 Core Toughened Pty Ltd v CFMEU [2015] FWC 7131 at [42] and Monash Health [2014] FWCA 1924 at [54] to [57]
7 PR917548
8 Print Q2603
RK COMMISSION AUSTRALIA, THE SEAL OF FAIR
