AG2002/1574, Transcript of Proceedings [2002] AIRCTrans 941 (22 March 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2002/1574

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6) of the
Act by the University of New England re
inserting clause 25.5 - university pay fortnight

SYDNEY

9.34 AM, THURSDAY, 7 MARCH 2002

THIS MATTER WAS CONDUCTED BY TELECONFERENCE IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have the appearances, please?

PN2

MR C. BURRELL: If it please the Commission, I appear on behalf of the University of New England.

PN3

MS A. KENNELLY: If the Commission pleases, I appear for the CPSU.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Burrell, it is the university's application, so I'll come to you.

PN5

MR BURRELL: Thank you, your Honour. Your Honour, this is an application by the university with consent of the CPSU to pursue under section 170MD(6) of the Act seeking to remove an ambiguity from the University of New England General Staff Enterprise Agreement 2000/2003. The ambiguity which the university sees exists, your Honour, is in clause 25 of the UNE General Staff Enterprise Agreement and that clause refers to the ordinary hours of work for staff. That clause works in conjunction with ordinary hours of work clause in the UNE General Staff Award.

PN6

This clause specifically applies and sets out the ordinary hours of work to staff who are involved in the essential work for the conduct and preparation for matters such as or certain events such as university exams, graduation, residential skills etcetera. Where the ambiguity that we believe exists comes up is in clause 25.3 of the agreement. It states that:

PN7

An employee must be rostered off for at least four days per fortnight, and two of these days must be a consecutive Saturday and Sunday.

PN8

Whilst that might seem straight forward, the actual ambiguity comes up in when does the fortnight apply? And this question has been raised and the university in the past has generally applied it in a way which coincides with the university's pay fortnight, however, the question has come up while we don't define when a fortnight is to when does the fortnight start? Does it start on a Monday or a Tuesday, Saturday or whatever? So we believe that that lack of clarity of when a fortnight starts actually creates an ambiguity or uncertainty about how the agreement should apply, how the provisions of that particular term should apply.

PN9

As I have noted in our application, and as I have just commented, the university staff are paid on a fortnightly basis, and the custom and practice of the university is that our time sheets, our rosters, overtime, etcetera, are all determined on pay sheets in accordance with the university's fortnightly payroll system. We believe that the way to remove the ambiguity or uncertainty in relation to clause 25.3 and the definition of fortnight is to insert a new subclause 25.5 or maybe to add - and I would be happy to take any directions or any order the Commission should wish to make - to add the words on the end of 25.3 that in this subclause a fortnight means the university pay fortnight.

PN10

THE SENIOR DEPUTY PRESIDENT: That's slightly different from your original proposal, which was for a new clause 25.5.

PN11

MR BURRELL: I understand that, your Honour, I'm just making that as a suggestion. I understand it was put forward in our application to propose a new subclause, however, if the Commission was to be of the view that, yes, there was an ambiguity, an uncertainty, but instead of inserting a new subclause that perhaps the Commission would basically put the same formal words onto the end of 25.3. In our that view that still comes out with the same result. Your Honour, we would further say just to support the claim, we would believe that this change in the definition of fortnight would also I think make it consistent the terms of which the parties understood how the agreement was to apply, and whilst it is something that overlooked to include a definition about what a fortnight meant during the bargaining process, our discussions to date, and I believe that you would have received a facsimile transmission that I sent to you addressed Attention Mr Stone, your associate, which included a letter from the Community and Public Sector Union.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN13

MR BURRELL; Indicating that they agreed to the proposal, which I think also indicates that obviously the parties have a view that this is obviously what the term is meant to mean and is one, as I've said earlier, we have been applying at the university.

PN14

Your Honour, if I can just refer to a couple of other points. We would submit in support of our claim, and I just draw your Honour's attention to the principles that were applied by Justice Munro in the CFMEU v Linfox Australia Pty Limited case which was print 22603, where at paragraph 30 Justice Munro noted that:

PN15

The provisions in an instrument can be said to contain an ambiguity...(reads)... is acceptable to more than one meaning.

PN16

We would put to you, your Honour, that the definition of a fortnight or the way in which the fortnight could apply in clause 25.3 does create a meaning that can actually see a construction, or more than one construction, but, as I said, the question arises of when does a fortnight apply and when does a fortnight finish? We would submit, your Honour, that clearly without the appropriate definition that there is a possibility for more than construction.

PN17

Secondly, your Honour, we would draw your attention to the principles that were set down by yourself or been referred to by yourself, that it would need to be noted that for the Commission to exercise its discretion under section 170MD(6) there was a requirement for two steps to be satisfied, and this is from a case regarding the Questell Agreement 1998. The first step that your Honour indicated was for the applicants to establish that an ambiguity or uncertainty exists, and we obviously would submit, your Honour, that we believe we have established that an ambiguity and certainty exists about how the fortnight would apply.

PN18

The second step that your Honour noted is whether the discretion to vary the agreement or to remove an ambiguity or uncertainty should be exercised, and on this point, your Honour referred to a passage from a Full Bench of the Commission in the Public Transport Corporation of Victoria versus the Australian Rail Tram and Bus Industry Union. That was print M2454, in which you quoted:

PN19

Once an ambiguity or uncertainty has been identified, it is then a matter of discretion as to whether or not it should be carried to remove the ambiguity ...(reads)... subsequent conduct of the parties.

PN20

Your Honour, it is our submission that if the Commission is so satisfied that an ambiguity of uncertainty has been established, that the Commission should exercise its discretion to vary the agreement of the matters sought as to do so will ensure that the terms of the agreement reflect what we believe to be the intention of the parties and the intended operation of the agreement. And if I can, by using the words of Deputy President Hampton of the Industrial Relations Commission of South Australia:

PN21

To re-establish the objective view of the way in which the provision was intended to apply on its face value.

PN22

We would submit, your Honour, that by making the variation, it does re-establish the objective view and the way which that provision is intended to apply.

PN23

Just to finalise, your Honour. We note in the correspondence by the CPSU that they have suggested that if the application is to be granted it should take effect from 8 March. We also note in their correspondence that they have indicated, and if I can just quote from their letter, the last paragraph:

PN24

We do note that the definition that the university pay fortnightly is itself not sufficiently understood by many staff and wish to give notice that this ought to be dealt with by way of formal definition in the next round of enterprise bargaining negotiations.

PN25

We obviously agree with that proposition and it will be understood to do that with the union in the next round of enterprise bargaining. Well, what we would say, your Honour, is that as the next university payroll fortnight begins as of 8 March and the fortnight starts from 8 March, that we would agree with thee CPSU that the variation, if it was granted, should take effect from 8 March as that date coincides, as I just stated, with the starting of the new university pay period, and it will obviously be a way in which to be able to clarify for those staff who maybe weren't quite sure or for other others who weren't sure when the university pay fortnight was. That would be able to clarify when it actually started from, so that would be an issue that we would ask the Commission to take into consideration as well in determining whether or not an order, where making an order if so the Commission pleases, how it would apply. if it pleases the Commission.

PN26

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Burrell. Ms Kennelly?

PN27

MS KENNELLY: Yes, Commissioner, the CPSU consents to the application by the university to vary the enterprise agreement. As Mr Burrell has already stated, the CPSU does acknowledge that there is ambiguity in relation to the definition of fortnight within the clause, and therefore we consent to their application.

PN28

THE SENIOR DEPUTY PRESIDENT: Very well. I might note on the form it would take that the consent from the local delegate or organiser, Ms Kennelly, indicates that the approval has been specifically given to the insertion of a 25.5.

PN29

MS KENNELLY: That is right, yes.

PN30

THE SENIOR DEPUTY PRESIDENT: And I think for that reason, Mr Burrell, I should consider it from that angle.

PN31

MR BURRELL: I'm happy with that, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Very well, well, I concede to a decision in the matter.

PN33

This is an application under section 170MD(6) of the Workplace Relations Act 1996 by the University of New England which is a party to the University of New England General Staff Enterprise Agreement 2000 to 2003. The other party is the CPSU, the Community and Public Sector Union. Section 170MD(6) of the Act states:

PN34

The Commission may on application by any person bound by a certified agreement by order vary a certified agreement.

PN35

While the application is made by the university, the application is consented to by the CPSU. The grounds filed in support of the application state:

PN36

1. Clause 25 of the aforementioned agreement sets out the ordinary hours of work for employees when involved in essential work for certain events such as graduation, residential skills and orientation week.

PN37

2. Clause 25.3 of the aforementioned agreement provides that an employee must be rostered off at least four days per fortnight which two of these days must be a consecutive Saturday and Sunday.

PN38

3. The ambiguity or uncertainty arises as the agreement does not provide a definition of when the fortnight applies.

PN39

4. This lack of clarity results in difficulty for the university in administering and applying the terms of the agreement effectively and consistently.

PN40

5. The agreement provides that staff are paid on a fortnightly basis and custom and practice at the university is that rosters, time sheets, overtime, etcetera, are all determined in line with the university's fortnightly payroll system.

PN41

6. In order to ensure consistency and to remove any uncertainty or ambiguity of the application of clause 25.3, a variation should be made to clarify that a fortnight means the university pay fortnight. It is therefore concluded in the ground that the variation will insure as per section 170MD(6) of the Act that there is no ambiguity or uncertainty in relation to the application of the certified agreement.

PN42

I'm satisfied that those grounds are made out and that there is at present an ambiguity or an uncertainty about what is meant by a fortnight. It is susceptible to more than one application. I am further satisfied that the ambiguity or uncertainty would be removed by addition of either a new subclause 25.5 or the addition of the same text to clause 25.3. In view of the fact that the former has been specifically approved by members of the CPSU and there being no objection by the university, I intend to look at that particular suggestion.

PN43

Satisfied as I am that the proposal will remove the ambiguity and uncertainty, I will therefore order the variation sought and the variation will take effect from 8 March 2002. The formal order to that effect will issue in due course. That completes the proceedings this morning, and I thank you both for your assistance and adjourn this matter indefinitely.

ADJOURNED INDEFINITELY [9.48am]