[1] The following decision, now edited, was given in transcript at Melbourne on 21 May 2002.

[2] "I have decided to give my decision in this matter now, rather than await the preparation of transcript which may involve some delay. The Commission has been asked to determine pursuant to section 170MD(6) of the Workplace Relations Act 1996 (the Act), that there exists a basis for varying The Victoria Police Certified Agreement 2001 (the agreement) as to the annual leave entitlement arising for sworn officers in the Information Management Department (the IMD) of the Victoria Police Force (the Force).

[3] The position of the Force is that by an administrative error in the preparation of the agreement, the IMD was incorrectly omitted from the section of the agreement which confers four weeks annual leave, and as a consequential effect of it not appearing in that list nine weeks leave applied. The Force submit that four weeks annual leave is the correct entitlement under the agreement. The Force argue that in the agreement, in its present form, lies uncertainty as to the proper entitlement arising. This is said to be so because it was not the intention of the parties to alter the annual entitlement above four weeks.

[4] The Police Association (the Association) for their part acknowledge that "there were no revised annual leave entitlements intended to apply in the new agreement" and in submissions today, the Association have indicated that there is a general acknowledgment that there was a mistake in the drafting of the agreement. The Association also acknowledge that there is an intention of the parties and present in the minds of the parties at the time of making the agreement, to vary the agreement during its term as provided for in the Act, at which time an error such as this could be rectified.

[5] This matter brings to notice an important issue. In my view, the authorities require the Commission to first consider whether section 170MD(6) is attracted. That is, whether there is an ambiguity or uncertainty. It does this by an examination of the clause said to be ambiguous or uncertain. In the event that the Commission were to find that there was an ambiguity or uncertainty, there then exists a broad discretion as to whether the agreement might be altered to remove the ambiguity or uncertainty.

[6] In this case it is clear that by REASON of the error made, the IMD was removed from the list where it should properly reside, thereby, through an administrative misadventure, providing for additional annual leave. On its face the agreement is clear. In my view there is neither ambiguity nor is there uncertainty as to the meaning of the agreement. There is however an error. While there can be an acknowledgment, often at the time of certification, of a typographical mistake or other similar slip, this issue is of a different nature. It goes to substantive entitlements and the material actually presented and voted upon by the employees whose employment was to be so regulated. I do not consider that the Commission is able to vary or alter the agreement by the triggering of a slip rule where the subject of the flaw is of the present dimension, however apparent may be the slip. Although the fact of such a capacity was not as fully developed by the parties in this case as it might have been, in my view the Parliament has not provided for a means of remedying such a clear error other than by the parties taking the step available to them under the Act to vary the agreement and, in this case later intended to be taken by them. I am unable to find the existence of an ambiguity or uncertainty so as to allow for the variation permitted by section 170MD(6).

[7] The matter should not, however, end there because it is vitally important in the parties' agreement effectuating the settlement of the claims each made on the other which were sought to be embodied in the agreement, that good faith be maintained. Such aims are fundamental to the Principle Objects, particularly section 3(e) of the Act, and the objects of Part VIB. I wish to make it clear that no party is presently acting in bad faith.

[8] With the knowledge that enforcement is not a matter for the Commission and further, that an action for enforcement might occur without the encouragement of the Association, I have not the slightest compunction in recording my view as follows. There should not be gained a benefit or advantage which relies on an acknowledged error in compiling an agreement, that is, through a factor other than the intention of the parties and which does not arise from any intrinsic merit and furthermore which has the potential to negatively influence the entitlements which do properly arise from the agreement.

[9] There exists in my view a strong public interest element in these considerations. It is further noted that the parties will, at an opportune time when other aspects of the agreement which were at the time of the making of the agreement foreshadowed to be altered pursuant to section 170MD(1) to (5), also remedy this error. In the event a prosecution arises in the meantime for penalty or performance over the proper annual leave to be applied in the IMD this decision may be relevant".

C Kennedy and G Kent appearing for The Police Association and as agent for P Mullett.

G Patterson and R Watson appearing on behalf of the Chief Commissioner of Police.

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