ENTERPRISE AGREEMENTS – ambiguity or uncertainty – s.217 Fair Work Act 2009 – application by Sunfresh Health P/L for Commission to use discretion to vary Sunfresh Health Enterprise Agreement 2017 Variation to remove ambiguity – applicant submitted interaction between clauses 12 and 13 of Agreement created ambiguity – applicant described ambiguity as overlap between ordinary hours for day workers and shift workers resulting in possibility that employees could fall under both definitions – lack of clarity about whether day worker could be entitled to shift loadings – applicant sought to vary clause 13(b) of Agreement to provide definition of ‘shift worker’ that excludes workers performing day work under clause 12 of Agreement – proposed variation clarifies employees performing day work as provided in clause 12 of the Agreement were not shift workers – Commission made objective assessment about whether, on proper construction of Agreement, it was susceptible to more than one meaning – satisfied there was ambiguity on the basis that clauses 12 and 13 were susceptible to more than one meaning – satisfied proposed variation reflected proper construction of Agreement – appropriate to use discretion to vary Agreement to resolve ambiguity – Agreement to be varied to delete clause 13(b) and replace with proposed variation. Sunfresh Health Enterprise Agreement 2017 Variation
