Aurora Energy Pty Ltd
[2014] FWCA 1580
•6 MARCH 2014
[2014] FWCA 1580 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.210—Enterprise agreement
Aurora Energy Pty Ltd
(AG2013/11489)
AURORA ENERGY AGREEMENT 2011
Tasmania | |
COMMISSIONER LEE | HOBART, 6 MARCH 2014 |
Application for approval of variation of the Aurora Energy Agreement 2011 - whether serious public interest arises - other matters - application granted.
[1] This is an application by Aurora Energy Pty Ltd (the Applicant) pursuant to s.210 of the Fair Work Act 2009 (the Act) to vary the Aurora Energy Agreement 2011 (the Agreement).
[2] The Agreement was approved under the Act by Fair Work Australia in December 2011 and has a nominal expiry date of 30 June 2014.
[3] The present application seeks to reflect an agreement between the Applicant and a majority of its employees to vary a number of clauses of the Agreement. The variations include varying the nominal expiry date of the agreement to 30 June 2015; deleting clause 4(c) from the agreement which referred to a sign on bonus relevant to when the agreement was made; varying clause 27(g) and Appendices 1 and 2 to allow for an additional wage increase of 2.5% plus a “total competency payment spend” of 1.3% (or greater depending on the CPI for the relevant period); and increases to the relevant allowances, consistent with Appendix 2, reflecting the additional 2.5% wage increase. In short, the proposed variation extends the life of the agreement by one year and provides an additional pay rise.
[4] The application was lodged on 18 November 2013. The Australian Municipal, Administrative, Clerical and Services Union (ASU) provided a Form F23B Declaration of Employee Organisation in Support of Approval of Variation of Enterprise Agreement (Form F23B) agreeing with the statutory declaration of the Applicant, and submitted a signed signature page for the variation. The AMWU has also filed a Form F23B. No other unions lodged a Form F23B. On 10 January 2014, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged a section 739 application to deal with a dispute: (matter number C2014/2596), related to the Agreement. The dispute notification noted the relationship between the dispute lodged and the application before me to approve this variation. The dispute notification was allocated to me. The dispute notification included the following:
“8. The variation application does not appear to have been determined by the Commission.
9. On 12 December 2013, the decision of Bromberg J in Mamara v Toyota Motor Corporation Limited [2013] FCA 1351 ("the Toyota case') held, inter alia, that a proposal by Toyota to vary the relevant enterprise agreement in that matter was contrary to the "no extra claims" portion of clause 4 of that enterprise agreement, and proposing to vary that enterprise agreement was a breach of that enterprise agreement.
10. Clause 7 of the Agreement is a no extra claims clause of similar effect to the clause considered by Bromberg J in the Toyota case.
11. The proposal by Aurora to vary the Agreement is contrary to clause 7.
12. The failure to consult with employees and their representatives, including the CEPU, about the proposed variation, is contrary to clause 10 of the Agreement.”
[5] The relief sought by the CEPU was as follows:
“The CEPU seeks conciliation of this mater in the first instance.
Given that the application to purportedly vary the Agreement has been made to the Commission, and that this application has been allocated for listing to Lee C, the CEPU seeks that the matter be urgently listed for conciliation in order that the matters in dispute may be resolved prior to any hearing of that Application.
Should the matter not be resolved by conciliation, the CEPU seeks an arbitrated determination that:
1. The purported variation to the enterprise agreement be withdrawn;
2. Prior to asking Aurora Energy employees to vote under s.208 of the FW Act in respect of any proposed variation the Agreement, Aurora genuinely and comprehensively consult with employees and the CEPU as required by clause 10 of the Agreement, including but not limited to engaging in discussions with the CEPU no less than 14 days prior to taking any step under s.208 of the Act.”
[6] On 6 February 2014, I listed the dispute notification and this variation application simultaneously for conference and hearing as it was clear that the dispute notification related entirely to this application to approve the variation. At the hearing the CEPU was represented by Mr. T Gauld, Branch Secretary and the company by Mr. D Dilger, a legal representative. No other unions or other bargaining representatives appeared. The ASU sent an email which stated that the ASU was unable to attend due to unforeseen circumstances, but that they “fully support the application by CEPU”.
[7] I granted Mr Dilger permission to appear on behalf of the Applicant, despite the objections of Mr. Gauld, as it was evident that the matter involved some complexity and granting permission to appear would allow the matter to be dealt with more efficiently.
[8] With the consent of the parties, I adjourned the hearing and moved into conference in order to discuss how the matters might best proceed. Subsequently it was agreed that the section 739 application would be adjourned and that the remainder of the hearing would deal with this application to vary the Agreement. It was agreed by both parties that the section 210 application (this application) would be dealt with on that day and that I would subsequently issue a decision on the matter.
[9] At the hearing, Ms. McKenzie, the Performance Manager for the Applicant gave evidence on behalf of the Applicant. The CEPU did not lead any witness evidence but did tender written materials on the day. The CEPU also filed, on 11 February 2014, copies of emails that were referred to in general terms during the hearing. The emails supplied after the hearing were the subject of a written reply submission from the Applicant.
The statutory context
[10] The Act relevantly provides as follows:
“207 Variation of an enterprise agreement may be made by employers and employees
Variation by employers and employees
(1) The following may jointly make a variation of an enterprise agreement:
(a) if the agreement covers a single employer—the employer and:
(i) the employees employed at the time who are covered by the agreement; and
(ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC;
(b) if the agreement covers 2 or more employers—all of those employers and:
(i) the employees employed at the time who are covered by the agreement; and
(ii) the employees employed at the time who will be covered by the agreement if the variation is approved by the FWC.
Note: For when a variation of an enterprise agreement is made, see section 209.
(2) The employees referred to in paragraphs (1)(a) and (b) are the affected employees for the variation.
Variation has no effect unless approved by the FWC
(3) A variation of an enterprise agreement has no effect unless it is approved by the FWC under section 211.
Limitation—greenfields agreement
(4) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.
208 Employers may request employees to approve a proposed variation of an enterprise agreement
(1) An employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it.
(2) Without limiting subsection (1), the employer may request that the affected employees vote by ballot or by an electronic method.
209 When a variation of an enterprise agreement is made
Single-enterprise agreement
(1) If the affected employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees who cast a valid vote approve the variation.
Multi-enterprise agreement
(2) If the affected employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed variation under subsection 208(1), the variation is made when a majority of the affected employees of each individual employer who cast a valid vote have approved the variation.
210 Application for the FWC’s approval of a variation of an enterprise agreement
Application for approval
(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.
Material to accompany the application
(2) The application must be accompanied by:
(a) a signed copy of the variation; and
(b) a copy of the agreement as proposed to be varied; and
(c) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the variation is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
Signature requirements
(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.
211 When the FWC must approve a variation of an enterprise agreement
Approval of variation by the FWC
(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:
(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and
(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;
unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.
Note: The FWC may approve a variation under this section with undertakings (see section 212).
Modification of approval requirements
(2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:
(a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and
(b) comply with subsection (5); and
(c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).
(3) The following provisions:
(a) section 180 (which deals with pre-approval steps);
(b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);
(c) section 188 (which deals with genuine agreement);
have effect as if:
(d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and
(e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and
(f) references in section 180 to subsection 181(1) were references to subsection 208(1); and
(g) the words “if the agreement is not a greenfields
agreement—” in paragraph 186(2)(a) were omitted; and
(h) paragraph 186(2)(b) were omitted; and
(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and
(hb) subparagraph 188(a)(ii) were omitted; and
(j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.
(4) Section 193 (which deals with passing the better off overall test) has effect as if:
(a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and
(b) subsection (3) were omitted; and
(c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and
(d) the reference in subsection (6) to section 185 were a reference to section 210.
(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.
Regulations may prescribe additional modifications
(6) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.
212 FWC may approve a variation of an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and
(b) the FWC has a concern that the variation does not meet the requirements set out in section 211.
Approval of agreement with undertakings
(2) The FWC may approve the variation under section 211 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any affected employee for the variation; or
(b) result in substantial changes to the variation.
Signature requirements
(4) An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.
213 Effect of undertakings
(1) If:
(a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and
(b) the agreement covers a single employer;
the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.
(2) If:
(a) the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation; and
(b) the agreement covers 2 or more employers;
the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.
214 When the FWC may refuse to approve a variation of an enterprise agreement
(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC may refuse to approve the variation if the FWC considers that compliance with the terms of the agreement as proposed to be varied may result in:
(a) a person committing an offence against a law of the Commonwealth; or
(b) a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth.
(2) Subsection (1) has effect despite section 211 (which deals with the approval of variations of enterprise agreements).
(3) If the FWC refuses to approve a variation of an enterprise agreement under this section, the FWC may refer the agreement as proposed to be varied to any person or body the FWC considers appropriate.
215 Approval decision to note undertakings
If the FWC approves a variation of an enterprise agreement after accepting an undertaking under subsection 212(3) in relation to the variation, the FWC must note in its decision to approve the variation that the undertaking is taken to be a term of the agreement.
216 When variation comes into operation
If a variation of an enterprise agreement is approved under section 211, the variation operates from the day specified in the decision to approve the variation.”
[11] Commissioner Hampton in his decision in Community Support Incorporated 1 set out a succinct summary of the matters the Fair Work Commission (the Commission) must consider in determining whether to approve a variation to an enterprise agreement as follows:
- the application is made in accordance with the requirements of the Act and the Fair Work Regulations 2009 (the Regulations); and
- the agreement to vary the enterprise agreement has been genuinely made between the employer and a majority of the relevant group of employees in the same manner as required to make an enterprise agreement that is approvable under s.186 of the Act, including ss. 180 and 188 as modified (these also include the provisions of Subdivision E, dealing with approval requirements relating to particular employees); and
- the agreement as modified by the proposed variation is such that it would meet the relevant approval requirements of s.186 of the Act (with appropriate modifications) including the Better Off Overall Test of s.193 of the Act and compliance with the National Employment Standards; and
- the group of employees covered by the agreement is fairly chosen, the agreement as modified does not contain any unlawful terms, the agreement includes a term that provides a procedure for settling disputes and meets other form and content requirements; and
- the agreement as varied does not specify a nominal expiry date of more than four years after the day on which Fair Work Australia initially approved the agreement; unless
- it is satisfied that there are serious public interest grounds for not approving the variation.
- meet the concerns;
- would not cause financial detriment to any affected employee for the variation or result in substantial changes to the variation; and
- have been signed as required by the Regulations.”
“[8] In effect, pursuant to s.211 of the Act, Fair Work Australia is required in general terms to approve a variation to an enterprise agreement where:
...
[10] Where concerns exist as to whether the genuinely agreed variation meets the requirements set out in s.211 of the Act, Fair Work Australia may accept undertakings and approve the variation, provided that the undertakings:
The evidence and consideration.
Was the application made in accordance with the requirements of the Act and the Fair Work Regulations 2009 (the Regulations)?
[12] This issue was not in contention. Having considered the application I am satisfied it is a valid application.
Was the agreement genuinely made?
[13] The CEPU submitted that there were a range of issues around the process that was followed in regards to information sharing and the process that was followed in regards to the ballot.
[14] The first concern raised related to the Applicant relying heavily on electronic communication emails and an intranet site. The CEPU allege this was not a satisfactory method of communication as a large proportion of the Applicant’s employees were said not to access emails frequently. Further, the CEPU submit that a number of their members are not computer literate and do not use the computers available. The CEPU concern related both to communication as to the terms of the variation sought as well as the information about how the ballot for the variation was to be conducted. There were also concerns that needs of employees from non-English speaking backgrounds was not dealt with satisfactorily.
[15] Ms. McKenzie for the Applicant gave evidence that disputed the CEPUs assertion that the field based employees don’t access electronic communication at all, pointing out that all leave applications, pay slips etc. are on line and are accessed by these employees, Ms McKenzie stating that “[w]e know that they use the computers”. 2 Further, she referred to face to face meetings that took place with the field based employees. Ms McKenzie conceded on cross examination she did not personally attend any of these meetings. She stated the basis of her knowledge of the meetings occurring came via team leaders, who were at the meetings, reporting back to their managers who in turn reported to her.3 She also gave evidence that she was involved in providing answers to questions asked by employees at the meetings back to team leaders who would then in turn provide the responses at toolbox meetings. Ms. McKenzie also gave evidence that the CEPU had 11 or 12 state-wide meetings with their members over a one week period. She also detailed the materials that were provided to employees to explain the change.4 Overall, the evidence of Ms McKenzie does not support a finding that the Applicant did not take reasonable steps to explain the variation to affected employees.
[16] The second concern related to the email submitted by the CEPU subsequent to the hearing and the extent to which it evidenced the claim of the CEPU that employees were confused about the additional pay rise that was the subject of the variation application. In particular, whether the 1.3% “total competency spend” was a guaranteed increase of 1.3% for employees. However, there is only one staff email submitted by the CEPU that deals with the 1.3% payment which reads as follows:
“On the Volt, one could be forgiven for thinking they are guaranteeing 3.8% here” 5
[17] This does not in my view evidence confusion on behalf of this employee; rather it is speculation by that employee that other employees might be confused. The communication from the Applicant, also in exhibit G2 makes clear that the additional wage offer mirrors the current agreement. In short, there is no evidence of confusion about the payment and I am not satisfied, having considered the written communication materials, and the fact that the pay increase mirrors the current agreement that there is a basis for finding that there was confusion.
[18] The third issue relates to claims the Applicant’s communication to employees about the proposed variation was coercive. The CEPU drew particular attention to the Power Point employee briefing to staff 6, where it stated, “[a]ny redundancy payments, for people leaving on or following the last pay day in June 2014, will be calculated on the increased wage” and on page 9, “[a]ny redundancy payments will be calculated on the current pay rates” as an answer to the question, “What happens if Aurora does not have a variation to the EA in place by 1 July 2014?”.
[19] Mr. Gauld for the CEPU conceded in his submissions that these were statements of fact but asserted that his members considered them to be coercive. In my view, Mr. Gauld is correct in stating that the text is simply a statement of fact. Considering the text for myself I do not consider it be threatening or coercive. Moreover, there is no evidence to support the claim that the text referred to was taken to be coercive.
[20] A fourth issue raised related to the CEPUs concern that employees were mislead into believing that the CEPU was complicit in the process and were supportive of the variation process. While I note Mr. Gauld had that concern, there is no evidence to support that finding. There were difficulties in evidence as to the arrangement of meetings with the unions prior to the communication process to employees commencing. However, the unchallenged evidence of Ms. McKenzie is that she attempted, on a number of occasions, to meet with the relevant unions to discuss the proposal. In any case, the information contained in exhibit G1 simply states that the unions were briefed; it does not say they are supportive of the variation.
[21] Having considered the evidence, including the Form F23A - Employers Declaration in Support of Approval of Variation of Enterprise Agreement, declared by Ms. McKenzie and submitted with the application to vary, I am satisfied that the Applicant took reasonable steps to communicate to employees what was contemplated in the variation application. 7 The employee briefing (exhibit G1) was clear in its terms, there were numerous meetings with staff, there was feedback to questions asked. The variation was relatively straightforward, involving essentially an extension to the agreement of one year and an additional pay rise in the same terms as the last pay rise that occurred under the existing agreement. The materials distributed to staff were not coercive but were rather statements of fact.
[22] Mr. Gauld for the CEPU raised similar concerns about communication with employees on the voting process. That is, a concern about over reliance on electronic communication and the concern that this is not an effective means of communicating with field based employees. However, the evidence of Ms. McKenzie was that the communication on the voting process was posted in depot kitchens and put on notice boards, was emailed out and was posted on the company intranet site. SMS’s were sent and hard copy information packs were available. There was a process to account for those people who were on leave. The ultimate vote was conducted by the Australian Electoral Commission. The evidence supports a finding that the Applicant took all reasonable steps to notify employees of the time and place the vote would occur and the voting method to be used.
[23] Overall, I am satisfied that the proposed variation has been genuinely agreed to and the requirements of the Act have been complied with.
Does the Agreement as modified by the variation meet the Better Off Overall Test?
[24] There was no suggestion by any party that this was not the case. Having considered the terms of the Agreement as modified by the variation, I am satisfied that the Agreement as modified by the proposed variation is such that it would meet the relevant approval requirements of the Act (with appropriate modifications) including the better off overall test of s.193 of the Act and that the variation is compliant with the National Employment Standards;
Is the group of employees covered by the agreement fairly chosen, does the agreement as modified contain any unlawful terms, does the agreement includes a term that provides a procedure for settling disputes and meets other form and content requirements?
[25] No issue was raised in the hearing as to whether the group of employees were fairly chosen. I am satisfied that the group of employee was fairly chosen. It was not suggested the Agreement as varied contains unlawful terms.
[26] The CEPU questioned whether the Agreement had dispute settlement procedures; flexibility terms; default superannuation terms and consultation terms that were compliant. The CEPU raised no specific issues of non-compliance. I have considered each of the relevant terms and I am satisfied that they all comply with the relevant requirements of the Act.
Are there serious public interest grounds for not approving the variation?
[27] The CEPU submits that serious public interest considerations arise on two grounds. Firstly, that if I was to approve the variation it would effectively condone a breach of the no extra claims provision in the existing agreement. This ground relies on an application, to the facts in this case, of the decision of Justice Bromberg in Mamara v Toyota Motor Corporation Limited 8 (the Toyota case) where His Honour found that Toyota had breached the no extra claims provision of the relevant agreement when communicating its proposed variations to that agreement.9
[28] The second ground raised by the CEPU, is that the Applicant has breached the consultation provisions (clause 10) in the existing agreement in that the Applicant did not meet the obligation to “consult with the parties and provide detailed explanations to both employees and to the unions at the preliminary stages of making a decision, or informing that they might pursue a variation”. 10 The CEPU submit that when the Applicant did consult with the CEPU that a final decision had already been made and that therefore the company had no right to make an application to the Commission to vary the agreement.
Does the variation application breach the no extra claims provision
[29] The CEPU submit that the no extra claims clause in the Agreement is a no extra claims clause of similar effect to the clause considered by Justice Bromberg in the Toyota case and that the proposed variation to the agreement is breach of clause 7 of the Agreement. The no extra claims clause at clause 7 of the Aurora agreement reads as follows:
“The parties to this Agreement must not make any further claims during the term of this Agreement”
[30] In the Toyota case, the no extra claims component was a part of clause 4 of the relevant agreement. The relevant part of that clause that the applicants successfully claimed was breached reads as follows:
“The parties agree they will not prior to the end of this agreement: make any further claims in relation to wages or any other terms and conditions of employment”
[31] In the Toyota case, it was found that the agreement could be varied, but only if a two step process was undertaken; firstly to vary the terms of the no-extra claims clause, and a subsequent step to vary other terms in the agreement. His Honour made particular note that the terms of clause 4 of the Toyota agreement were limited to wages or any other terms and conditions of employment. Therefore, this did not exclude the capacity of the parties to effectuate a variation to clause 4 itself including by removing it. 11
[32] It is clear from the decision that “[s]o long as, practically speaking, the capacity for parties to access the Subdivision A variation process is not ousted, a term imposing restrictions is not necessarily inconsistent with the FW Act.” 12 His Honour found that the particular no extra claims clause under consideration met that test, was therefore not inconsistent with the Act and thus not invalid. In coming to this point, His Honour made the following observations:
“119. In the end, the question seems to come down to this: does the scheme of the FW Act contemplate that through the consensual agreement making process provided by the FW Act, the parties to enterprise agreements may exclude themselves from the consensual variation process provided by the FW Act? Like many of the approaches the scheme of the FW Act takes, in my view, the scheme seeks to strike a balance.
120. That the hands of the parties to an agreement could be completely tied by their prior agreement so that no later capacity to effectuate an agreed change is available, no matter how beneficial to all that change may be, is not a common feature of any type of agreement making. It is an unattractive notion and a consequence that is not likely to have been intended by the framers of the FW Act. I do not consider that the scheme of the FW Act intends that parties to an enterprise agreement may exclude themselves entirely from the Subdiv A variation process. A provision in an enterprise agreement to that effect would be inconsistent with the FW Act and invalid.” 13
[33] And further;
“141. Despite the agreement of the parties to an enterprise agreement to do so, an enterprise agreement which ousts or excludes the capacity of an employer and its employees to vary their agreement in accordance with the consensual process provided for by the FW Act is, to that extent, inconsistent with the scheme of the FW Act and invalid.” 14
[34] Mr. Dilger for the Applicant submitted that the particular terms of the no-extra claims clause under consideration in this matter is in the category referred to by Justice Bromberg as ousting or excluding the capacity of the employer and its employees to vary their agreement. Therefore, following the approach in the Toyota decision, the no extra claims clause in the Agreement is inconsistent with the scheme of the Act and is invalid.
[35] Mr. Dilger further submitted that it is in the public interest to approve the variation to the agreement in any case, as the other public interest considerations including the impending reforms to the electricity industry outlined by Ms. McKenzie and the associated uncertainty for employees, are important public interest considerations to be considered.
[36] Mr. Dilger for the Applicant also submitted that the CEPU did not agitate against the agreement variation approval after the 10 October 2013 until the section 739 dispute was notified on January 10 2014.
[37] Considering the particular terms of the no extra claims clause in this Agreement, the words “must not make any further claims” is not limited in any way. It does not, within its terms allow for the “two step” approach to variation contemplated as possible in the Toyota decision. The ordinary meaning of the words is clear, to not make any further claims. In fact it is hard to imagine a no extra claims clause with broader reach than this clause, nothing escapes its grasp. I consider its terms would have the effect of “ousting” the ability of the parties to vary the agreement and to the extent that it does so it is inconsistent with the Act and is invalid.
[38] Having formed the view that the clause is invalid, it follows that I do not agree with the CEPU that the application to vary this agreement is in breach of the no extra claims provision. In that context, the concern raised by the CEPU does not present as a serious public interest consideration against approving the variation to the Agreement.
Does the variation application breach the consultation provision in the agreement
[39] Consideration of this matter is rather more straightforward. The consultation provisions are contained in clause 10 of the Agreement. It applies as is typical of such provisions to “... plans to introduce a significant change to production, program, organisation, structure or technology that is likely to significantly affect employees.” This is an application to vary the Agreement to provide for an additional pay increase and to extend the life of the Agreement by one year. Neither of these changes could reasonably be considered to attract the operation of clause 10. It follows that I do not consider that there has been a breach of the consultation provision and therefore it does not present as a serious public interest consideration against approving the agreement.
[40] I do not believe there are serious public interest grounds for not approving the variation.
Conclusions
[41] Having considered the above matters and all of the other relevant statutory approval requirements as provided by or called up by sections 210 and 211 of the Act, I am satisfied that the application should be granted and the variation approved.
[42] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.
[43] In accordance with s.216 of the Act, the variation operates from the date of this decision.
COMMISSIONER
1 [ 2010] FWA 9145
2 PN88
3 PN127
4 PN103
5 Exhibit G2
6 Exhibit G1, page 4
7 McDonald's Australia Pty Ltd [2010] FWAFB 4602, [29]
8 [2013] FCA 1351
9 Mamara v Toyota Motor Corporation Limited, [2013] FCA 1351, [149]
10 PN36
11 Mamara v Toyota Motor Corporation Limited, [2013] FCA 1351, [122] - [123]
12 Mamara v Toyota Motor Corporation Limited, [2013] FCA 1351, [121]
13 Mamara v Toyota Motor Corporation Limited, [2013] FCA 1351, [119] - [120]
14 Mamara v Toyota Motor Corporation Limited, [2013] FCA 1351, [141]
Printed by authority of the Commonwealth Government Printer
<Price code C, AE890073 PR548409>
0
1
0