Australian Manufacturing Workers' Union (AMWU) v Wood Australia Pty Ltd

[2023] FWC 653

[2023] FWC 653

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.739 - Application to deal with a dispute

Australian Manufacturing Workers' Union (AMWU)
v

Wood Australia Pty Ltd

(C2022/7859)

DEPUTY PRESIDENT COLMAN MELBOURNE, 17 MARCH 2023

1. The AMWU has made an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 30 of the Wood and Metropolitan Water Industry – Mechanical and Field Services Enterprise Agreement 2020 (Agreement). The application was lodged on 29 November 2022. The dispute concerns the entitlements of a former employee of Wood Australia Pty Ltd (Wood), Mr Florrimell, whose employment ended in June 2022. It is common ground between the parties, and I agree, that the Commission does not have jurisdiction to determine the dispute, because at the time the application was made Mr Florrimell was not an employee of Wood and the Agreement did not apply to him.

1. The AMWU and Wood requested that the Commission nevertheless express a view about the answers to two questions that might resolve the dispute. I agreed to do so. I asked the parties to submit a concise outline of their respective positions, which they did.

1. The first question is whether clause 34.3 of the Agreement required Wood to pay severance payments to Mr Florrimell while he was in receipt of workers compensation payments. What is really meant by this question is whether the company was required to make contributions on Mr Florrimell’s behalf to the trustee of a trust known as the Protect Severance Scheme No 2.

1. Clause 34.3 states that all employees will be registered with a relevant fund, and that the company ‘will make contributions in accordance with the requirements of the respective trust deed.’ It further states that the contribution ‘will be $76.35 per week and will be reviewed and amended to reflect industry practice for the fund.’ The amount of the contribution has since been increased to $81.00.

1. Wood contends that its consistent approach has been not to make contributions in respect of employees who are on workers compensation. This has been the advice to Wood from the trustee as to its obligations under the trust deed. This is the company’s practice in respect of contributions made to the trust in connection with other enterprise agreements which apply to it. The AMWU has not previously raised any concern about this.

1. It appears however that, as the AMWU contends, clause 34.3 of the Agreement speaks generally of a requirement that contributions be made for all employees. There is no exception for employees on workers compensation. Further, clause 5 of the trust deed simply states that members will make contributions to the scheme in respect of their workers: ‘of such amount, or at such rate and on such basis: (a) [as] applicable from time to time under, or for the purpose of, an Agreement; or (b) as may be agreed from time to time between the Member, the Trustee and the Sponsors …’ There is no evidence of any agreement as contemplated in (b), whereby payments would not be made in respect of employees receiving workers compensation.

1. In my view the answer to the first question is ‘yes’.

1. The second question is whether the expression ‘ordinary rate’ in clause 26 of the Agreement, which deals with accident make up pay, includes tool allowance and travel allowance. ‘Ordinary rate’ is not defined in the agreement.

1. The AMWU contended that, because Mr Florrimell ordinarily received travel and tool allowances while he was at work, these payments were part of his ordinary rate. In my view, this is not the case. First, allowances are discrete payments made for specified reasons that are in addition to a person’s ‘rate’ of pay. Further, the ordinary industrial meaning of ‘ordinary rate’ is a rate of pay that is separate from loadings, such as shift and weekend penalties that might otherwise apply. It is the rate for ordinary hours. I do not see any textual support for the AMWU’s contention that clause 26.2 entitles employees to ‘weekly pay as if at work’. That is not what clause 26.2 says.

1. In my view the answer to the second question is ‘no’.

DEPUTY PRESIDENT

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