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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the...

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the...

Case [2024] FWC 3354 3 December 2024

Variation of Contract

Employment & Labour Law

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[2024] FWC 3354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) & "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (188V)
v

Valmet Pty Ltd t/a Valmet

(C2024/4842 & C2024/4923)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 3 DECEMBER 2024

Application to deal with dispute under dispute settlement term of agreement –‘no extra claims’ clause – whether proposed changes precluded by ‘no extra claims’ clause - existing arrangements as express or implied contractual terms – whether terms implied by ‘custom and practice’

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical. Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) have made applications for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (Act) and the dispute settlement term, clause 26, of an enterprise called the Valmet Pty Ltd – B9 Opal Botany Enterprise Agreement (2023-2026) (Agreement).

The dispute concerns changes to the payment arrangements that the Respondent company, Valmet Pty Ltd (Valmet), proposes to make for certain employees at its site at Botany Road, Matraville. In summary, those changes relate to, firstly, the way the payment of a team leader allowance is paid and secondly, the cessation of the payment of wages on the basis of an existing averaging arrangement (and consequential changes to paid leave).

The unions, on behalf of their members employed by Valmet, oppose the proposed changes. They say that the changes are ‘extra claims’ which are prohibited by clause 7, ‘No Extra Claims’, of the Agreement. The unions do not rely on any other clauses of the Agreement to argue that the implementation of the changes cannot occur.[1] The unions also accept that nothing in the National Employment Standards or the relevant modern award, the Manufacturing and Associated Industries & Occupations Award 2020, which is incorporated into the Agreement under clause 6, prevented the implementation of the proposed changes (save for an argument that other clauses of the award assisted the Applicant’s argument as to the proper construction of the ‘no extra claims’ clause).[2]

Valmet argues that clause 7 of the Agreement does not have the effect of preventing the implementation of the proposed changes.

The applications were in similar terms and were, by consent, heard together.

Background

Valmet is part of the Valmet Group of companies which is based in Finland. It manufactures and sells industrial machinery and equipment. The Australian and New Zealand operations sell machinery and provide maintenance services to customers.

In 2010, Valmet (then known as Metso Paper (ANZ) Pty Ltd (Metso)) built the B9 Botany Mill paper machine at the Matraville premises for Amcor. Upon completion, the other machinery at the site ceased to operate and only the B9 machine…

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

AGLC: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the... [2024] FWC 3354
Case: [2024] FWC 3354
Decision Date: 3 DECEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, the unions, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU), applied for the Commission to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth) and the dispute settlement term of the Valmet Pty Ltd – B9 Opal Botany Enterprise Agreement 2023-2026 (Agreement). The dispute concerned proposed changes by Valmet, the employer, to payment arrangements for certain employees. The unions opposed the proposed changes arguing that they were prohibited by the ‘no extra claims’ clause of the Agreement. Valmet argued that the changes were not precluded by the clause. The Deputy President concluded that the proposed changes to the payment arrangements were prohibited by the ‘no extra claims’ clause of the Agreement. The clause applied to changes to existing contractual rights established by implied terms, or through custom and practice, as well as to changes in the terms of the Agreement. The proposed changes to the team leader allowance and the averaging payment arrangement were changes to existing contractual rights established by implied terms and custom and practice, and therefore, prohibited by the clause. The Deputy President did not propose to issue orders at that time, but encouraged the parties to negotiate and clarify the issues in the next round of bargaining. The parties were given the option to apply for orders if they were unable to implement the outcome of the decision without making orders.

Orders