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Fair Work Act 2009
s.217—Enterprise agreement
Energy Safe Victoria
(AG2020/3822)
ENERGY SAFE VICTORIA ENTERPRISE AGREEMENT 2020
State and Territory government administration
DEPUTY PRESIDENT COLMAN MELBOURNE, 14 DECEMBER 2020
Application to remove ambiguity or uncertainty in an enterprise agreement
[1] Energy Safe Victoria (ESV) has made an application under s 217(1) of the Fair Work
Act 2009 (Cth) (Act) to remove an ambiguity or uncertainty in clause 34.3.2 of the Energy
Safe Victoria Enterprise Agreement 2020 (2020 Agreement), which was approved by the
Commission on 11 December 2020. ESV and the union parties to the Agreement have
requested the Commission to determine the application on the papers, and I consider that it is
appropriate to do so.
[2] The ambiguity or uncertainty is said to be found in clause 34.3.2 of the Agreement,
which concerns salary points for senior management employees. The clause states that the
rates of pay ‘are detailed in the table below and are based on a 2% per annum increase with
the first increase effective from the first full pay period to commence on or after 15 September
2020’. A table then appears that sets out a lower and upper figure that constitutes the salary
range for a particular period. A range is specified in respect of the ‘old pay’, and for the
periods commencing from 15 September 2020, 1 July 2021, 1 July 2022 and 1 July 2023. The
lower and upper figures for 15 September 2020 are two percent higher than the ‘old’ rates.
The figures for 1 July 2021 and 1 July 2022 are two percent higher than those of the
preceding years. However the figures for 1 July 2023 are a little over four percent higher than
those for 1 July 2022. ESV submits that these figures represent a calculation error, and that, as
clause 34.3.2 itself makes clear, they were intended to be set at amounts two percent higher
than the figures for the preceding year. However, because the text of the clause says one
thing, and the figures in respect of 2023 say another, ESV contends that the clause is
ambiguous or uncertain, and that it should be corrected to reflect what was plainly the
intention of the parties.
[3] Section 217 of the Act provides that the Commission ‘may vary an enterprise
agreement to remove an ambiguity or uncertainty’. The principles that apply to the
[2020] FWCA 6718
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCA 6718
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Commission’s consideration of such applications are well-settled.1 The Commission must
first identify whether there is any ambiguity or uncertainty in the agreement. The presence of
ambiguity or uncertainty is a jurisdictional prerequisite to the exercise of the discretion to
vary the instrument. The Commission is required to make a positive finding as to whether the
relevant provisions of the agreement are ambiguous or uncertain, based on an objective
assessment of the meaning of the words in question, construed in context.
[4] If ambiguity or uncertainty is identified, the Commission must then consider whether
to exercise its discretion to vary the agreement. An application under s 217 is not concerned
with substantive change to an agreement. A decision of the Commission under s 217 to
remove uncertainty or ambiguity should give effect to the substantive agreement that was
ambiguously or uncertainly reduced to writing in the terms of the enterprise agreement.
[5] In my opinion, clause 34.3.2 of the Agreement contains an uncertainty, because
although the text of the provision stipulates that the wages will be increased by two percent
per annum, the salary range for 2023 that appears in the table reflects a year-on-year increase
of more than two percent. On one view, the salary range appearing in the table is obviously
wrong and therefore not ambiguous or uncertain, because the explanation of the annual wage
increases is clear and all of the other figures in the table correctly reflect the two percent
increase provided for in the text of the clause. However, the clause states that the salaries are
‘based’ on a two percent increase, and it might be contended that this does not preclude some
rates being increased by a higher amount.
[6] ESV asks that the Commission vary the salary range for 2023 in the table in clause
34.3.2 to reflect a two percent increase on the previous year’s range, so that it reads
‘$184,850-$223,350’, instead of ‘$188,547- $227,817’. I am persuaded that to vary the
Agreement in this way would remove the identified uncertainty and align the terms of clause
34.3.2 with the intended meaning, and that I should exercise my discretion to vary the
Agreement in the manner sought by the application, for the following reasons.
[7] First, the explanatory material provided by ESV to employees in accordance with
s 180(5) of the Act clearly stated that wage increases would be at the rate of two percent per
annum, and that this accorded with the State government’s wages policy. The explanatory
material is consistent with a conclusion that clause 34.3.2 was intended to deliver wage
increases of two percent per annum, and not more.
[8] Secondly, at a mention hearing on 11 December 2020, two of the unions that were
bargaining representatives for the Agreement, the Australian Workers’ Union and the
Australian Municipal, Administrative, Clerical and Services Union, indicated that they
supported the application. The Association of Professional Engineers, Scientists and
Managers, Australia did not wish to participate in the mention but has indicated to ESV that it
supports the application. The position of the unions reinforces my conclusion that to vary the
clause in the manner proposed by ESV will align the provision with the actual agreement that
was struck in the course of bargaining for a new enterprise agreement.
[9] Thirdly, at the mention, Ms Karen Fitzpatrick, general manager of ESV, gave sworn
evidence that there are 16 senior management employees whose employment will be covered
1 See generally United Voice v MSS Security Pty Ltd [2016] FWCFB 4979 at [19] and Bradnam’s Windows and Doors Pty
Ltd [2019] FWCA 979 at [11].
[2020] FWCA 6718
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by the Agreement and that ESV has spoken with each employee about the miscalculation of
the wage bands for 2023 in clause 34.3.2 of the Agreement. Ms Fitzpatrick’s evidence was
that each of the employees has confirmed his or her understanding that the wage bands for
2023 would be two percent higher than the previous year, and that none of the employees was
opposed to ESV’s application to vary the Agreement to remove ambiguity or uncertainty in
relation to clause 34.3.2. I accept Ms Fitzpatrick’s evidence. Her evidence allays any concern
that the affected employees might have voted to approve the agreement based on an
understanding that they would receive the higher salary ranges for 2023 appearing in the
table, which would otherwise have been a consideration telling against the exercise of the
discretion to vary the Agreement.
Conclusion
[10] I find that the Agreement is uncertain in the respect that I have identified above. I
consider that I should exercise my discretion to remove that uncertainty by varying the
Agreement as follows:
(a) Delete ‘$188,547-$227,817’ in the last column of the second row in the table in clause
34.3.2; and
(b) Insert ‘$184,850-$223,350’ in the last column of the second row of the table in clause
34.3.2.
[11] The variations will operate from 18 December 2020, which is the day on which the
Agreement will commence to operate.
DEPUTY PRESIDENT
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