[2014] FWC 6922
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739 - Application to deal with a dispute

Australian Municipal, Administrative, Clerical and Services Union
v
North East Water
(C2014/4291)

Water, sewerage and drainage services

COMMISSIONER WILSON

MELBOURNE, 6 OCTOBER 2014

Alleged dispute concerning implementation of changes in fleet policy.

[1] An application made by the Australian Municipal, Administrative, Clerical and Services Union (the ASU) on 2 May 2014 notified the Fair Work Commission (the FWC) of a dispute arising under the North East Water Enterprise Agreement 2011. 1 The dispute relates to changes sought to be made by North East Water to its Fleet Management Policy, which impacts on the limited private use some employees have for the motor vehicles they drive which are owned and maintained by North East Water.

[2] The application seeks the FWC resolve the dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) by making determinations that;

[3] The references to the “First Policy” are references to a document attached to the witness statement of one of the ASU’s witnesses, and which is said to be the North East Water Fleet Management Policy prevailing in 2009. 3

[4] For the reasons set out in this decision, I have decided the dispute is within the Commission’s jurisdiction to deal with, and that;

Background

[5] The North East Water Agreement 2011 was approved by Commissioner Roe on 31 July 2012 and expressed to have an operative date of 7 August 2012 and a nominal expiry date of 29 August 2014. 4 The Agreement covers the North East Water Corporation (which is referred to throughout this decision as “North East Water”) and all employees, and through the approval decision of Commissioner Roe, it also covers the ASU and the Association of Professional Engineers, Scientists and Managers, Australia.5

[6] Certain employees of North East Water have access to North East Water owned and maintained motor vehicles. This access is granted through various means, and controlled through a documented Fleet Management Policy, which has changed over time, and is now the subject of a further change intended by North East Water. Some versions of documents provided in the hearing refer to this policy as the “Fleet Policy” or the “Fleet Management Procedure”. The evidence indicates the arrangements for the use of these vehicles has, until the time of North East Water’s 2014 changes to its Fleet Management Policy, fallen into several categories;

[7] The dispute now before the Commission particularly relates to a decision by North East Water to phase out the Limited Private Use category. This means that certain employees will no longer have access to a North East Water vehicle for purposes that may previously have been permitted. The evidence shows that prior to the decision that gave rise to this dispute, Limited Private Use meant use of the vehicle by the employee with travel distance in 2009 being “restricted to a 200 kilometre radius from the drivers base work location and to/from Melbourne unless otherwise authorised by the Chief Financial Officer”. 6

[8] The “First Policy” documentation provided by the ASU from 2009 shows there may originally have been no restriction on who may drive the vehicle, if permitted by the person responsible for the vehicle 7, whereas the North East Water documentation from 2006 shows the vehicles may only be driven by the employee and not family members or friends (except when the employee was in the vehicle with a non-employee driver)8. The context of this dispute does not require me to resolve this inconsistency.

[9] The Fleet Management Procedure from June 2011, being the “prevailing Policy subject to review” in March 2014 9 set out a more beneficial entitlement, at least in respect of the travel distance arrangements;

[10] The ASU contends that the correct application of the North East Water Enterprise Agreement 2011 (the Agreement) requires North East Water to continue to provide the Limited Private Use category for some or all employees who previously received a benefit.

[11] The parties’ submissions relied upon the following provisions of the agreement as clauses relevant to the settlement of this dispute;

[12] In addition to these clauses, the FWC, needs to have regard to the provisions of clause 58 (Dispute Resolution Procedure) of the Agreement, which is a term of an enterprise agreement providing a procedure for dealing with disputes. 11 Clause 58 provides;

[13] Section 739 of the Act provides for the FWC to deal with a dispute if a term such as clause 58 requires or allows such dealing. Subsection 739(6) requires that the FWC may only deal with a dispute on application by a party to the dispute, which threshold is met by the ASU’s application. In addition, s.739(3) requires the FWC not exercise any powers limited by the Dispute Resolution Procedure; and s.739(4) provides the FWC may arbitrate the dispute in accordance with the term if the parties agreed that such may be done. Subsection 739(5) provides the FWC must not make a decision that is inconsistent either with the Act or with the North East Water Agreement 2011.

[14] The material before the FWC in this matter consists of the outlines of submissions of both parties and witness evidence from two employees of North East Water giving evidence on behalf of the ASU, together with two employees of North East Water providing evidence on behalf of the Respondent.

[15] The persons who gave evidence on behalf of the ASU were Craig Piazza, who holds the position of Supervisor Electrical/SCADA (Zone 2), and Damien Kelly, employed as an Automation and Electrical Supervisor. Each of Mr Piazza and Mr Kelly are employees affected by North East Water’s change in policy, since both have had Limited Private Use vehicles available to them for some time. The evidence received on behalf of North East Water was from John Day, Executive Manager Operations and Rebecca Jhonston, Manager People and Culture.

[16] Ms Jhonston’s evidence was that the removal of the Limited Private Use arrangements was part of North East Water’s changes to its Fleet Management Policy which were;

[17] Mr Day elaborated as follows in his statement on the background to the changes and how they came be to be adopted by North East Water;

[18] Mr Day’s evidence is that the changes made by North East Water were discussed in an executive meeting on 12 March 2014 and presented to an operations group meeting on 26 March 2014. His evidence is that at the close of the latter meeting it was agreed there would be a further meeting with the coordinators (who are substantially the group of people to be affected by the changes) and that at the following meeting it was intended there would be a discussion of the recent changes together “with possible compensation for loss of private use of the vehicles” 14.

[19] Mr Day’s evidence is that there was a dialogue between the management representatives and affected employees over the period of March to May 2014. According to Mr Day’s witness statement, the dialogue extended to possible compensation for the changes to be made. The parties negotiated around the “Bands” at which employees were classified 15 and the possible quantum of a one-off payment to be made by North East Water in return for the loss of Limited Private Use of a North East Water vehicle. By the end of May 2014 it was apparent to Mr Day that agreement was not going to be reached over the proposed changes and possible compensation for loss of benefit for at least Mr Piazza and Mr Kelly, who were indicating they “were still going to arbitration”16.

[20] Ms Jhonston provided in her witness statement what she describes as “a copy of the proposed amended Fleet Management Policy, with an issue date for April 2014”. 17 The Policy is expressed to have been issued on 4 April 2014, having been approved by the Manager Finance18 and relevantly provides the following arrangements in respect of vehicle use that is not strictly in relation to operational requirements;

[21] There is no precise evidence before me about the policy that applied to either Mr Piazza or Mr Kelly at the time they started having access to a North East Water vehicle with “Limited Private Use” (which, in each case, was in 2009 21). Mr Piazza’s witness statement attaches a version which is contested by North East Water, and which he says was provided to him at the time he was appointed to the position of Supervisor Electrical.22 Ms Jhonston’s witness statement disputes that the document put forward by Mr Piazza was the one actually applying to him at the time, and instead puts forward 2006 and 2009 versions which she believes are the versions that actually applied.23

[22] Each of Mr Piazza and Mr Kelly gave evidence to the effect that they have worked in their present positions since 2009 and that when they were moved into the positions they now hold they were provided with Limited Private Use access to a North East Water motor vehicle. In the case of Mr Piazza, his evidence includes;

[23] Mr Kelly’s evidence on this matter includes;

[24] Mr Piazza’s evidence was that in 2009 he had moved into the supervisor position owing to a restructuring and the retirement of an existing supervisor and that he took on some additional duties as a result of the change in circumstances. At the time he had been engaged on Band 7A which did not change as result of the new arrangement other than through the allowance on the part of North East Water that he could use a vehicle for Limited Private Use. This evidence is consistent with the documentation set out in the attachment to Mr Piazza’s witness statement. However that documentation is possibly incomplete since the letter of appointment appears to only be the first of perhaps two pages to the letter. Having made this indication it is entirely possible that the original correspondence comprised only the one page which is provided in these proceedings since North East Water did not provide an authoritative copy of the letter of appointment.

[25] Mr Kelly’s evidence on these matters also included that, as with Mr Piazza, in 2009 he had been employed on Band 7A and at the time he had been using a North East Water motor vehicle for which he was entitled to commuter use and that as a result of the change in his employment circumstances in 2009 the arrangement went to Limited Private Use. While Mr Kelly did not supply in these proceedings a copy of the letter provided to him at the time of appointment to his position, his evidence was that he had been provided with the same correspondence as Mr Piazza.

[26] The documentation that was provided by Mr Piazza and set out within his witness statement at attachment CP1 comprises of the extract of the letter of appointment, dated 5 March 2009, together with a single page letter of the same date relating to the provision of a North East Water vehicle. The letter of appointment sets out, in relation to Mr Piazza;

[27] North East Water’s letter to Mr Piazza in respect of the provision of a North East Water vehicle sets out terms and conditions relating to the vehicle as follows;

[28] These conditions were acknowledged by Mr Piazza who signed them, stating that he agreed to “the provision of a company vehicle as provided above and the terms and conditions of the Corporation’s Fleet Policy.” 29

Consideration

[29] The North East Water Agreement 2011 clause 58 (Dispute Settling Procedure) provides for a procedure to be applied where a dispute occurs.

[30] The dispute is about the conditions of employment of up to 13 employees in addition to Mr Piazza and Mr Kelly 30 under the North East Water Agreement 2011 and continues to be unresolved on the evidence of the ASU witnesses.

[31] Subclause 58.2 of the Agreement, a component of the Dispute Settling Procedure, employs different language to subclause 58.5.

[32] Subclause 58.2 is a direction about what should occur at the workplace level in the event of a dispute. Both subclause 58.2 and subclause 58.5 stand as part of the overall Dispute Settling Procedure, however subclause 58.5 establishes a stepped procedure for the progressive escalation of disputes where they cannot be resolved, with the intention that progressively more senior and arguably more formal consideration might resolve a dispute that has been unable to be resolved at earlier steps of consideration. As such the steps within the procedure are within the context of the parameters established in the preamble of the subclause.

[33] That is, the actions within the steps are referable to disputes “regarding the wages and conditions of employment of any employee covered by the agreement” and “whether any such dispute or claim arises out of the operation of [the] agreement or not”. The powers of the FWC to conciliate and arbitrate are within that context. When sub-clause 58.5.5 refers to an unresolved matter being referred “for conciliation and, if necessary, arbitration”, and when sub clause 58.5.6 refers to the exercise of “all powers as are necessary to make the arbitration effective”, those references are plainly to the parameters established in the preamble of subclause 58.5.

[34] The evidence is that the change in the North East Water Fleet Management Policy came about through a desire on the part of North East Water to avoid increases in Fringe Benefits Tax costs which are, of course, determined externally to the workplace bargain that encompasses the enterprise agreement.

[35] The No Further Claims clause set out in clause 4 of the Agreement, prevents claims “in relation to salary increases or conditions of employment” except for those claims that might be granted under the terms of the Agreement. This is a similar phrase to that used in the stepped dispute settling procedure set out in subclause 58.5, which refers to dealing with disputes occurring “regarding the wages and conditions of employment” of employees.

[36] There are no provisions of the Agreement that deal directly with the provision of motor vehicles and so there is nothing to be taken account of in that regard. However consideration must be given to whether, as the ASU submits, the North East Water intended changes to the Fleet Management Policy are contrary to the No Further Claims clause.

[37] Section 739(5) of the Act requires that the FWC, when dealing with a dispute under that section, “not make a decision that is inconsistent” with the Act or the North East Water Agreement 2011. In the first instance, this requires the FWC to deal with a dispute in accordance with the processes and scope of the authority that has been established by the Agreement. It also requires, once the FWC is satisfied it is empowered to deal with a dispute and that it is only dealing with a dispute to the extent that it is permitted to do so, that the FWC ensures any decision it contemplates is not inconsistent with any provisions of the Agreement.

[38] The ASU’s submissions referred to the decision of the Federal Court at first instance in Marmara v Toyota Motor Corporation Australia Ltd (Toyota) 31, submitting that the language of Clause 4 of this Agreement was;

[39] For its part, North East Water contended that neither the decisions of the Federal Court in Toyota or the decision from the appeal in that matter Toyota Motor Corporation Australia v Marmara 33, were relevant to this dispute34. The case did not deal with a change or variation to a policy and in contrast dealt with an enterprise agreement that was comprehensive and resolved the parties enterprise bargaining claims. Unlike the circumstances of Toyota, there is in this case;

[40] North East Water submitted that in any event, the decision of the Full Court in Toyota Motor Corporation Australia v Marmara and the decision of Bromberg J in the first instance are not at odds with decisions of the Full Bench and the Full Federal Court holding that unless an enterprise agreement specifically deals with actual workplace policies sought to be introduced, implemented and/or varied by an employer, there is no legal impediment to an employer exercising management prerogative to do so: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd (Silcar) 36; Wagstaff Paling Ply Ltd and another v Construction, Forestry, Mining and Energy Union37 (Wagstaff) or Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Kraft Foods Australia Pty Ltd38 (Kraft).

[41] In its consideration of Toyota on appeal, the Full Court held that the no further claims term in the relevant agreement was a permitted matter under s.172 of the Act 39 and was not an objectionable term under s.1240. However, the Full Court found that the clause suffered from repugnancy with the Act, for the reason it purported to constrain a right available under the Act;

[42] The Full Court considered at some length the context of what might be a “claim” and approved the findings in the primary judgement, in which Bromberg J stated;

[43] The Full Bench decision in Silcar involved consideration of an appeal against a decision in relation to an application for an order under s.418 of the Act together with an application pursuant to s.739 to deal with a dispute arising under an applicable enterprise agreement made under the Act. The Full Bench summarised the issues it was dealing with in this way;

[44] North East Water drew on the reasoning in Silcar to support the proposition that, in the absence of a term of an enterprise agreement provision to the contrary, there is a management prerogative to vary workplace policies. North East Water cite with approval the Full Bench’s consideration of the clause in the Silcar enterprise agreement dealing with “working hours, shift work and RDO’s”. One part of the clause, which is referred to in the extract cited by North East Water, stated that “[s]hift work for maintenance personnel will continue to operate as follows ...” (cl.(10)(b)). The Full Bench found the following in relation to this matter;

[45] Wagstaff involved the application of a Fitness for Work policy to employees of the company which was a sub-contractor to Theiss Pty Ltd on a major construction project. 44 A drug and alcohol policy was included in the Wagstaff enterprise agreement45 which was consistent with an industry policy. However Wagstaff and Thiess applied a different regimen of controlling drug and alcohol use on the site, including through the administration of random testing. The question brought to the Commission for resolution included whether the Wagstaff agreement prevented Wagstaff from requiring employees to submit to random drug and alcohol tests.46 The Full Bench held that while the agreement was silent on the subject, its silence could not be interpreted as a prohibition,47 including for the reason that the scheme of the Agreement was for a cooperative and collective approach to the management of drug and alcohol issues;

[46] In relation to the same matter, the Full Court of the Federal Court of Australia held in CFMEU v Wagstaff Piling 49 that the agreement was not an exclusive or exhaustive statement of the powers or discretions available to Wagstaff to manage drug and alcohol issues. The agreement did not expressly prevent mandatory random drug and alcohol testing.50

[47] The decision of Commissioner Gregory in AMWU v Kraft Foods Australia Pty Ltd 51 concerned attempts by an employer to introduce a new policy requiring employees to remove their wedding rings or bands whilst at work, for reasons associated with hygiene. The AMWU submitted the requirement was an extra claim and was in breach of the Agreement, acting to change the employee’s conditions of employment. Kraft submitted it was introducing a policy change that was “introduced in the interests of food hygiene and does not alter existing employment obligations or entitlements”.52 In finality, the Commission was not satisfied that what the employer wished to do was an extra claim in breach of the No Extra Claims clause.53

[48] The ASU put forward that North East Water are in breach of the No Further Claims clause for the reason that what is sought is a claim, and that it is not reasonably open to North East Water to amend its policy to prospectively exclude Limited Private Use, as defined, from affected employees’ conditions of employment whilst the Agreement continues to operate. 54 The context in this case is that North East Water wishes to withdraw something that has previously been provided to employees. If that thing is dealt with in the enterprise agreement, a request or desire or decision by one party to withdraw or change the operation of the agreement is likely to be a “claim” within the meaning of clause 4, No Further Claims.55 It could also be put forward that if the Agreement does not deal with the subject, if that subject relates to “salary increases or conditions of employment sought or granted” a change might also be a “claim”.

[49] Arising from this are several considerations;

[50] The proposition that what is proposed by North East Water is a “claim” or a “further claim” requires an examination of the circumstances of the proposal; its effect on employees; and the context of clause 4.

[51] What is to be introduced by North East Water is a change to how motor vehicles are allowed to be used by a limited number of employees, up to 13 employees in addition to Mr Piazza and Mr Kelly, although the number has been as high as 20. 56 The evidence shows that since at least 2006, if not earlier, approved employees have had Limited Private Use of a North East Water owned and badged vehicle and have been permitted to drive the vehicle for their own private benefit;

[52] As previously referred to, this version of the policy is different to that provided in Mr Piazza’s evidence, and continues that;

[53] While there is a dispute between the parties about the authoritative version of the policy applicable in 2009, the documents provided by each have broad consistency, at least in terms of the extent to which the vehicle could be used, and that the provision of the vehicle and the terms on which it is provided might be the subject of review from time to time. 59 For example, the version tendered in Mr Piazza’s witness statement permits the following, with the principal difference appearing to be in relation to whether the vehicle may be driven by a person other than the employee60;

[54] While this is different from the policy North East Water argues was in operation at the time, and restricting use of the vehicle only to the employee and not family members or friends (except when the employee was in the vehicle with a non-employee driver) 61, the context of this dispute does not require me to resolve this inconsistency. This dispute relates to whether Limited Private Use should continue to be made available to employees working under the Agreement, rather than whether the terms of its provision should be changed.

[55] The further context of the change to be introduced by North East Water is that employees who are allowed Limited Private Use do not make a contribution to North East Water for their access to the vehicles, which is in contrast to executive employees who have full private use of a vehicle and “pay” for the private component use of the vehicle through salary sacrifice arrangements 62. The evidence is also that the change is motivated through an externality, being changes to the Australian Government Fringe Benefits Tax rules.

[56] The evidence of Mr Piazza and Mr Kelly was that access to Limited Private Use of a North East Water vehicle was a reward for them taking on additional supervisory responsibilities in 2009 and that provision of the vehicle was a benefit to them, and a monetary one at that. They did not move from one classification Band to another at the time they agreed to take on additional duties, although they have, over time, progressed through Band 7 for reason of the progression criteria set out in the Agreement. The various versions of the policies state that provision of the access to the vehicles was “as reward for exceptional performance and is accordingly subject to periodic review”. 63

[57] It is also relevant to take account of the way clause 4 is worded. There is not a restriction on the making of all further claims, but “further claims in relation to salary increases or conditions of employment sought or granted, except for those granted under the terms of this Agreement”. (emphasis added)

[58] North East Water referred in their submissions to the matter of Walsh v Greater Melbourne Cemeteries Trust (No 2) 64, in which the phrase “in relation to” was considered within the context of s.341(1)(c)(ii) of the Act, being the workplace right of an employee to make a complaint or inquiry “in relation to his or her employment”. In that matter, Bromberg J held the words are of wide import, identifying that a relationship between the subject matter and employment is required, and that the nature of the relationship need not be direct and may be indirect, and that “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment, it is likely that the requisite nexus will be satisfied.”65 Potentially, in the context of this matter, there will be a nexus present when the subject matter of the further claim has implications, direct or indirect, for the enterprise agreement.

[59] North East Water’s reliance on this reasoning would be correct if the “further claims” so limited by clause 4 were only in relation to matters arising under or connected with the enterprise agreement; however this is not the case, since the phraseology of clause 4 is broader, being a relationship of the further claim to “salary increases or conditions of employment sought or granted”.

[60] There is a requirement to interpret industrial instruments in accordance with the natural and ordinary meaning of its words 66, read as a whole and in context.67 The task of interpretation avoids narrow or pedantic approaches68 and should not be in a vacuum divorced from industrial realities.69 An enterprise agreement is a statutory artefact with the legal efficacy of its terms arising under statute, not contract, being felt also by those who did not agree to them.70

[61] The evidence in this matter leads to the view that provision of the vehicles for Limited Private Use amounted to one of the employees’ “conditions of employment”. Mr Piazza refers to the vehicle being provided to him “[a]s part of my promotion … without any reduction or trade-off in my terms and conditions of employment”. 71 His 2009 letter of appointment is consistent with this, referring as it does to a restructure, with the author stating he is “pleased to advise” of Mr Piazza’s appointment to the new position.72 The evidence includes Mr Piazza’s quantification of the value of the vehicle to him. Although his ascribed value is not agreed by North East Water, the point is that he saw the provision of the vehicle as having a value to him and that correspondingly the withdrawal of the vehicle would leave him worse off. Mr Kelly’s evidence on these points is consistent with Mr Piazza’s.

[62] While neither the Act or the Agreement define “conditions of employment”, the Act provides that the “main terms and conditions of employment of an employee that are provided under this Act” are those set out in the National Employment Standards, a modern award, an enterprise agreement or workplace determination that applies to an employee and that other conditions may arise from other legislated sources. 73 Employment of the adjectives “main” and “other” in the section and without further limitation plainly identifies that an employee’s conditions of employment are not limited to the conditions granted by the Act or an agreement.

[63] The counter argument is that the change to Limited Private Use arrangements by North East Water is a desire on North East Water’s part to modify an existing policy, with such modification being within its prerogative to make. The facts of this matter are distinguishable from the cases referred to by North East Water. The Full Court’s finding in Wagstaff that the agreement was not an exclusive or exhaustive statement of the powers or discretions available to manage drug and alcohol issues, and that Wagstaff were entitled to implement testing as they saw fit, is a reference to the implementation of the detail of a broad and extensive policy contained within the agreement. While, of course, a decision to use random drug and alcohol tests in contrast to the alternatives is a matter of very important detail, it is nonetheless not at the level of being an alteration of the fundamentals of the conditions of employment. A similar distinction is to be drawn between this matter and that considered in Silcar and Kraft. Silcar concerned notifications about crewing changes within the context of a comprehensive agreement providing a structure of remuneration for employees who did work at the times sought by the company. Kraft concerned the rights of employees to wear their personal effects, but did not involve questions of remuneration.

[64] North East Water argued that, in this matter, there are important distinctions between the Agreement and others, including the circumstances of Wagstaff or Toyota. The Agreement does not contain workplace policies and North East Water is not seeking to vary the Agreement, which in any event does not deal comprehensively with the employment relationship. North East Water’s submissions in these regards included the following;

[65] In the above extract, North East Water referred to the decision of the Full Bench in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board; and Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia   (UFU v MFB) 75  in which there was a consideration given to whether a claim to advance an “instructors stream” of classifications and the like under the enterprise agreement applying to Melbourne firefighters was prevented by a “no extra claims” clause. In UFU v MFB, the Full Bench rejected an argument advanced that, notwithstanding a reference in one clause of the enterprise agreement to the establishment of such a stream, the definite nature of the no extra claims provision prevented the advancement of the claim. The clause relating to the advancement of a claim regarding an instructors stream was recorded by the Full Bench as follows;

[66] The Full Bench dealt with the objection to matters being raised about the instructors stream in this way;

[67] A close reading of the Full Bench’s decision in UFU v MFB shows the issue under consideration was not whether extra claims were limited only in respect of matters dealt with by the agreement, but rather the converse; namely whether the clause operated to restrict claims about matters ostensibly authorised within the agreement.

[68] In this case, the fundamentals shown by the evidence include that new work not previously done was taken on in return for valuable consideration. Not all aspects of the policy and arrangements surrounding Limited Private Use will be so fundamental, and perhaps legitimate variations may be made to those arrangements, whether unilaterally or after consultation. It is possible that a desire to reduce the private use radius or to shift away from unrestricted travel within a radius to a monthly kilometre total might fall into this category. However, those possibilities are not the subject of this dispute; rather the subject is the complete withdrawal of a Limited Private Use category.

[69] Also relevant in this consideration is that, in their actions preceding this matter, the parties’ engaged in debate about what would happen in the event that agreement was not reached over a replacement Fleet Management Policy. Mr Piazza’s evidence was that the additional duties that originally came with the Limited Private Use of a vehicle could be foregone if that was employees’ preference when it came to lose access to Limited Private Use. His witness statement refers to a meeting with Mr Day and Ms Jhonston on 26 May 2014, and records what was said bluntly;

[70] North East Water acknowledged there was an exchange on the subject but rejected it was put as a threat, with Mr Day’s statement placing it in a softer, more reasoned perspective 77;

[71] Ms Jhonston also acknowledged there had been an exchange between employees and Mr Day about the additional duties that came with the provision of Limited Private Use, with her witness statement recording the discussion in this manner;

[72] These exchanges reinforce that the provision of Limited Private Use in 2009 came from a desire on the part of North East Water for the employees to undertake duties not being done by them at the time. In return for the valuable consideration of the provision of Limited Private Use of a North East Water vehicle, they were to perform new and additional duties. Both aspects – performing new work and in return being provided with Limited Private Use for a vehicle – can be regarded as “conditions of employment”.

[73] I am satisfied that the Limited Private Use arrangements for employees who were provided the vehicle as a reward for taking on additional duties is one of their “conditions of employment”, and that the contrary would be counter-intuitive.

[74] I am also satisfied that the change proposed by North East Water is a “further claim” in the meaning ascribed to that term by the Full Court in Toyota, about which it was said;

[75] The Full Court’s decision also;

[76] It is ultimately unnecessary for me to deal with the question of whether this is a further claim in breach of clause 4 because of the Full Court’s reasoning in Toyota, which held a repugnancy between the clause being considered and the Act. Variations to an Agreement may be proposed by an employer and “a term of the agreement which states, or has the effect, that the employer may not so proceed must necessarily be inconsistent with or repugnant to the FW Act to that extent.” 84

[77] In relation to the ancillary question of whether any other aspect of the Agreement limits introduction of the change sought by North East Water, in the context of it being a “further claim”, the finding of the Full Court in Toyota about when the limitation of claims can be considered to have expired becomes relevant;

[78] There is no suggestion, of course, that North East Water cannot seek to change employees’ conditions of employment. The Full Court allows, as set out above, that this can be done including through negotiations over an enterprise agreement, which can occur from the time the nominal expiry date for an existing agreement has passed.

[79] In conclusion, and on the basis of the foregoing considerations, I find the following about the ASU’s application;

[80] Consistent with these findings, I will make the following orders, to be issued separately and at the same time as this decision;

COMMISSIONER

Appearances:

Ms H Shing, for the Applicant

Mr T Donaghey, of Counsel, for the Respondent

Hearing details:

2014.

Melbourne:

August, 20 and 26

 1   AE895782

 2   Exhibit A3, para 28

 3   Exhibit A1, attachment CP2

 4   [2012] FWAA 6526

 5   Ibid, para 3; North East Water Agreement 2011, cl.2.2.3

 6   Exhibit R2, attachment RJ-15, p12; see also Exhibit A1, attachment CP-1

 7   Exhibit A1, attachment CP-1

 8   Exhibit R2, attachment RJ-15, p12

 9   Exhibit R2, para 4

 10   Exhibit R2, attachment RJ-5

 11   Fair Work Act 2009, s.738(b)

 12   Exhibit R2, para 2

 13   Exhibit R1, para 2

 14   Ibid, para 4

 15   See North East Water Agreement 2011, Appendix A

 16   Exhibit R1, para 11

 17   Exhibit R2, para 7

 18   Exhibit R2, attachment RJ – 8

 19   Ibid, p10

 20   Ibid, p 13

 21   Exhibit A1, para 3; Exhibit A2, para 4

 22   Exhibit A1, para 4 and attachment CP 2

 23   Exhibit R2, para 15

 24   Exhibit A1, para 3

 25   Exhibit A1, paras 5- 6

 26   Exhibit A2, paras 4 - 6

 27   Exhibit A1, attachment CP1

 28   Ibid

 29   Ibid, p2

 30   Exhibit R2, para 12

 31   [2013] FCA 1351, per Bromberg J.

 32   Exhibit A3, paras 24 - 27

 33   [2014] FCAFC 84, Jessup, Tracey and Perram JJ

 34   Exhibit R3, para 10

 35   Ibid, para 9

 36   [2011] FWAFB 2555

 37   Before the Full Bench in [2011] FWAFB 6892; and the Full Federal Court in [2012] FCAFC 87

 38   [2013] FWC 791

 39   [2014] FCAFC 84, at [123]

 40   Ibid, at [129]

 41   Ibid, at [97]

 42   Ibid, at [37]

 43   A reference to the decision in Kucks v CSR Limited (1996) 66 IR 182, at [184], per Madgwick J

 44   [2011] FWAFB 6892; (2011) 213 IR 142, at [9] – [11]

 45   Ibid, at [13]

 46   Ibid, at [20]

 47   Ibid, at [31] – [33]

 48   Ibid, at [34]

 49   [2012] FCAFC 87; (2012) 222 IR 73

 50   Ibid, at [45] – [46], per Buchanan and Katzmann

 51   [2013] FWC 791

 52   Ibid, at [10]

 53   Ibid, at [28]

 54   Exhibit A3, para 23

 55   Toyota Motor Corporation v Marmara [2014] FCAFC 84, at [37]

 56   Exhibit R2, para 12; Exhibit A3, para 15

 57   Exhibit R2, Attachment RJ-15, p12

 58   Ibid, p13

 59   For example, compare Exhibit R2, Attachment RJ-15, pp12 – 13; Exhibit A1, attachments CP1 & 2

 60   Exhibit A1, Attachment CP2, p7

 61   Exhibit R2, attachment RJ-15, p12

 62   See Exhibit R2, attachment RJ-5, p16

 63   Ibid, p13

 64   [2014] FCA 456

 65   Ibid, at [41] – [42]

 66   Clothing Trades Award (1950) 68 CAR 597

 67   Australian Timber Works Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172

 68   Kucks v CSR Limited (1996) 66 IR 182, at p184

 69   City of Wanneroo Holmes [1989] FCA 369; 30 IR 362, at [378]

 70   Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84, at [88] – [90]

 71   Exhibit A1, para 3

 72   Ibid, attachment CP1

 73   Fair Work Act 2009, s.43

 74   Exhibit R3, para 10 - 11

 75   [2013] FWCFB 2301

 76   Exhibit A1, para 12

 77   Exhibit R1, pp7 - 8

 78   Exhibit R2, para 11

 79   Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84, at [55]

 80   Ibid, at [56]

 81   Ibid, at [58]

 82   Ibid, at [59]

 83   Ibid, at [61]

 84   Ibid, at [97]

 85   Ibid, at [58]

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