DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Professional Golfers Association of Australia
(AM2021/2)

Application by Professional Golfers Association of Australia Limited to vary the Amusement, Events and Recreation Award and Registered and Licensed Clubs Award.

[1] On 13 January 2021, the Professional Golfers Association of Australia Limited (the PGA) made an application to vary the Registered and Licensed Clubs Award 2020 and the Amusement, Events and Recreation Award 2020 (the Awards).

[2] The application was made under s.160 of the Fair Work Act 2009 (the Act). Section 160 of the Act deals with the variation of a modern award to remove ambiguity or uncertainty or to correct an error.

[3] The application seeks to replace the words ‘PGA Trainee’ with ‘PGA Associate’ wherever it appears in both of the Awards.

[4] On 15 January 2021, I issued a statement and directions seeking submissions and evidence from the PGA and those of any party opposed to the Application.

[5] On 22 March 2021, the PGA informed the Commission that it did not intend to file further submissions and was content for the application to be determined on the papers.

[6] On 25 March 2021, I issued a further statement stating that the Commission would accept any submissions in opposition to the Application by 4.00pm Friday 9 April 2021. No submissions in opposition to the application were received.

LEGISLATION

[7] Section 160 of the FW Act is set out below:

“160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.”

[8] The approach to an application under s.160(1) of the FW Act and the determination of whether a provision is ambiguous or uncertain was considered in CoInvest Ltd v Visionstream Pty Ltd 1 (CoInvest). The decision in CoInvest was in relation to s.170MD of the Workplace Relations Act 1996 which provided that:

“The Commission may, on application by any person bound by a certified agreement, by order vary a certified agreement:

(a) for the purpose of removing the ambiguity or uncertainty…”

[9] The wording of s.170(MD) is not dissimilar to that in s.160 of the FW Act such that the reasoning in CoInvest remains relevant to the matter currently before the Commission.

[10] The Full Bench in CoInvest observed:

“[42] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty.¹³ It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

[43] The first part of the process - identifying an ambiguity or uncertainty - involves an objective assessment of the words used in the provision under examination. 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.

[57] In our view the Commission's power to vary an agreement pursuant to s.170MD(6) requires a positive finding that the agreement is uncertain or ambiguous.”

[11] In Re. Public Service (Non Executive Staff – Victoria) (Section 170MX) Award 2000 2 Senior Deputy President Polites provided clarity on the meaning of ‘uncertainty’ by adoption of the following definition:

“In that respect I respectfully adopt the submission made by the State of Victoria that the term “uncertainty” means the quality of being uncertain in respect of duration, continuance, occurrence, liability to chance or accident or the state of not being definitely known or perfectly clear, doubtfulness or vagueness. Those are extracts for the Concise Oxford Dictionary adopted by Commissioner Whelan in Re: Shop Distributive and Allied Employees Association v. Coles Myer [Print R0368]. In my view, as I have indicated, this provision clearly falls within that definition.”

[12] The first consideration therefore is to determine if the provisions sought to be varied are ambiguous or uncertain. It is only if this is found to be the case can a variation to remedy that ambiguity or uncertainty be considered.

SUBMISSIONS

The Applicant

[13] In its application, the Applicant states that it is implementing changes to the terminology used within its training programs, whereby ‘PGA Trainee’ will now be referred to as ‘PGA Associate’. These changes came into effect on 1 January 2021.

[14] The Applicant says that the change in terminology seeks to remove any confusion in relation to the term PGA Trainee, particularly in the area of training wages. The Applicant states that employees classified as PGA Trainees were not undertaking an official traineeship and were therefore not eligible for training wages.

[15] The Applicant submits the use of the term PGA Trainee caused significant confusion within the golf industry and resulted in non-compliance from some employers in relation to wages for PGA Trainees.

[16] The Applicant says that the proposed variation will:

•  Remove any uncertainty or ambiguity in relation to the wage rates for specific individuals.

•  Provide clarity for employers of individuals undertaking the Membership Pathway Program in relation to wage rates.

•  Improve compliance in relation to wage rates within the Australian Golf Industry.

[17] No submissions opposing the proposed variation were filed.

CONSIDERATION

[18] I am satisfied that the Applicant has identified ambiguity and uncertainty in the Awards. I am satisfied that the term “trainee” is used in each of the Awards to identify two separate classes of employees – gold trainees who are defined as “an individual formally undertaking the Professional Golfers Association’s trainee Program” and employees who are undertaking traineeships for whom minimum wages and conditions are prescribed in the Miscellaneous Award 2020.

[19] The term “trainee” in relation to Professional Golfers describes a different class of employee from those covered by the Miscellaneous Award 2020. The use of the term to describe both classes of employees does create ambiguity and uncertainty.

[20] In the statement issued by me on 25 March 2020 I indicated my provisions view that the Awards should be varied as sought. No objection has been raised to this course of action.

CONCLUSION

[21] Being satisfied that the Awards contain ambiguity or uncertainty I am satisfied that the Awards should be varied as sought in the application.

[22] Draft determinations in relation to each Award will be issued with this decision.

[23] Any interested party will have 11 May 2021to provide any comment in relation to the draft determination. If no comments are received the determinations will be issued with effect from the date of issue.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   PR947076, 25 May 2004.

 2   T3721, 24 November 2000.