Anthony Bunnik v Boeing Defence Australia Ltd - [2025] FWC 1442

[2025] FWC 1442

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739—Dispute resolution

Anthony Bunnik
v

Boeing Defence Australia Ltd

(C2024/7818)

DEPUTY PRESIDENT LAKE

BRISBANE, 26 MAY 2025

Alleged dispute about any matters arising under the enterprise agreement - Recommendation

The dispute application was initially made by the Australian Workers’ Union (AWU) on 4 November 2024 seeking to resolve a dispute with B0oeing Defence Australia Ltd (the Respondent) under s.739 of the Fair Work Act 2009 (the Act). Mr Anthony Bunnik (the Applicant) is now self-represented. The application has been amended under s.586(a) of the Act to note Mr Bunnik as the Applicant.

The dispute concerns a Heritage Band Payment which the Applicant alleges he is owed.

Prior to working for the Respondent, the Applicant was employed by Aerospace Technologies Australia. In 2002, his employment was transitioned to the Respondent. In 2007, the Boeing Australia Limited Aviation Trades Employee Collective Agreement came into effect. The Applicant was paid his Heritage Band Payment under the transition provisions of that collective agreement. The Boeing Defence Australia Limited Aviation Trades Enterprise Agreement came into effect in February 2010 with successive agreements approved by the Commission in 2011, 2015, 2018 and 2021. The 2021 Agreement has been replaced by the Boeing Defence Australia Limited Enterprise Agreement 2024 (2024 Agreement).

The Applicant’s argument, at a broad level, is that the Respondent is not entitled to unilaterally stop paying the Heritage Band payment. The Respondent argues that in August 2023, it discovered that the Applicant has been receiving the Heritage Band Payment for years, when, in their view, he is not entitled to it. The Respondent says that the Commission has no jurisdiction to hear the dispute about whether the Heritage Band Payment is contractually owed to him.

I am satisfied that the parties have attempted to resolve the dispute at a workplace level.

Clause 18.5 of the Agreement allows the Commission to deal with the dispute initially through conciliation or making a recommendation, then progress the matter to arbitration:

18.5 The Fair Work Commission may deal with the dispute in two (2) stages:
(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

(i)arbitrate the dispute; and
(ii)make a determination.

Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.

The matter was listed for conciliation on 27 November 2024. Settlement offers were made following the conciliation, but those offers did not come to fruition. Since the conciliation, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1442
Decision Date: 26 MAY 2025

CaseChat Overview and Summary

The case of Anthony Bunnik v Boeing Defence Australia Ltd involved a dispute over a Heritage Band Payment. The Applicant, Mr Anthony Bunnik, sought to resolve a dispute with Boeing Defence Australia Ltd under section 739 of the Fair Work Act 2009. The Applicant argued that the Respondent was not entitled to unilaterally stop paying the Heritage Band Payment, while the Respondent argued that the Applicant had been receiving the payment erroneously and that the Commission lacked jurisdiction over the matter. The Applicant claimed that the Heritage Band Payment was an undocumented or "hidden" clause of the Enterprise Agreement, stemming from an arrangement between Boeing Defence Australia and several employees transitioning from Aerospace Technologies Australia. The central legal issues were whether the Commission had jurisdiction over the dispute and whether the Heritage Band Payment could be stopped by the Respondent. The Court found that the Commission had jurisdiction and that the Heritage Band Payment could be stopped by the Respondent. The Court concluded that the Heritage Band Payment was not an implied term in the Enterprise Agreement and that clause 27.2 of the Agreement only prevented a reduction in wage that resulted from the commencement of the Agreement. Since the decision to stop the payment was made after a payroll audit in August 2023 and was not due to the commencement of the Agreement, the dispute was resolved. The Commission recommended that the Heritage Band Payment could be removed from the Applicant.

Orders