s.739 - Dispute resolution

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

• [1] 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.

• [2] The dispute concerns a Heritage Band Payment which the Applicant alleges he is owed.

• [3] 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 The 2021 Agreement has been replaced by the Boeing Defence Australia Limited Enterprise Agreement 2024 (2024 Agreement).

• [4] 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.

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

• [6] 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.

• [7] 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 parties have continued to negotiate and engage in settlement discussions. The process has been protracted by periods of leave. Given the parties are now at a standstill, with the latest settlement discussion having been unsuccessful, I have determined that it is appropriate to make a recommendation to resolve the dispute.

• [8] In making the recommendation, the Applicant has requested that I take into account his email of 30 April 2025:

Sorry for the delayed reply. I have been away from work a lot lately and when at work have not had a lot of free time to check and reply to emails.

As I have been unable to come to any kind of agreement with BDA I was happy to see what your recommendation was going to be. I did not expect BDA to tell you what you can and can't make recommendations on nor did I expect them to ask for the matter to be closed when they were not the ones to raise the dispute.

I personally have no idea what is within your jurisdiction but I would like the matter to remain open. Clause 27.2 may not have been the best clause to raise the dispute under but as I don't really have a lot of experience in these matters that is the clause my Union suggested to submit it under. The key issue I was trying to raise is that BDA changed my employment classification and associated pay rate without my agreement.

Since the hearing with the FWC I learned that BDA had been untruthful from the beginning of the dispute. Their whole claim for the removal of the Heritage allowance and change of classification was that they had no records that I was entitled to it. When I requested a full copy of my employment history the documents BDA HR sent me showed that BDA had all the records of why I was receiving the Heritage payments. The only documentation they didn't have is anything relating to why and when the classification was supposed to cease. I believe that there is enough evidence to show that the Heritage banding is really an undocumented or "hidden" clause of the EA as it was an arrangement between BDA and a number of employees that transitioned from ASTA to BDA when the agreement originally started.

As I stated I am unsure of what you can make recommendations on but I would like you to take into account my statement here and hopefully make a decision based off that.

• [9] I have taken into account the Applicant's email.

• [10] In the initial application, the AWU suggested that the question to be determined by the Commission is:

Having regards to the Boeing Defence Australia Limited Enterprise Agreement 2024 ('Agreement') and in particular clause 27.2 of the Agreement, can the employer remove the 'Heritage Band Payment' from an employee that has been receiving it.

• [11] The ancillary question is whether the dispute falls within the Commission's jurisdiction under s.739 of the Act.

Is the dispute within the Commission's jurisdiction under s.739 of the Fair Work Act?

• [12] Clause 27.2 of the 2024 Agreement states, under the heading of "Classification and Wage":

27.2 No current Boeing Employee will receive any reduction in wage as a result of the commencement of this Agreement.

• [13] Clause 18 of the 2024 Agreement requires that the relevant dispute either relate to a "matter arising under the Agreement" or "the National Employment Standards". The phrase "matter arising under the Agreement" includes disputes about the interpretation of provisions an enterprise agreement. If the substance of the dispute relates to an argument about whether the 2024 Agreement prevents the Respondent from ceasing to pay an allowance, that is arguably a matter arising under the 2024 Agreement even though the right to the payment does not originate from the Agreement itself.

• [14] The Respondents argue that the Applicant was erroneously receiving heritage band payments for many years and this issue was only discovered in August 2023.[1] The Respondent notes that the Respondent had foreshadowed to the Applicant twelve months in advance that it would stop making the payment, and that it would not seek to recover backpay from the Applicant. The Respondent argues that there is no term in the relevant enterprise agreements between 2010 and 2018 which provide for an allowance for heritage banding.[2] The Respondent argues that the Applicant's argument is properly construed as a contractual argument and the Commission is not the appropriate jurisdiction to deal with a contractual dispute. The Respondent also denies that the Applicant has any contractual entitlement to the heritage banding payment.

• [15] The Applicant advances an argument as follows:

Heritage banding is really an undocumented or "hidden" clause of the EA as it was an arrangement between BDA and a number of employees that transitioned from ASTA to BDA when the agreement originally started

• [16] Taking this argument at its highest, this is an argument that there is an implied term in the enterprise agreement which has survived through successive agreements from 2007. While this is technically an argument involving interpretation of an enterprise agreement, and therefore falling under s.739, for reasons set out below, is a strained interpretation.

• [17] I am satisfied that the Commission has jurisdiction to hear the dispute.

Having regards to the Boeing Defence Australia Limited Enterprise Agreement 2024 ('Agreement') and in particular clause 27.2 of the Agreement, can the employer remove the 'Heritage Band Payment' from an employee that has been receiving it?

• [18] The principles of construction and interpretation as set out in AMWU v Berri Pty Ltd[3] are well known and I do not need to repeat them in full. As a first step, it must be determined whether the Agreement can be interpreted according to its plain and ordinary, or if it is ambiguous. If the Agreement has a plain meaning, then evidence of surrounding circumstances will not be admissible to contradict that plain meaning.

• [19] As noted above, the Applicant argues there is a 'undocumented or "hidden"' term in the Agreement which gives him a right to receive the heritage band payment.

• [20] The argument for an implied term in an enterprise agreement should be treated with a high degree of caution, given an enterprise agreement is a document which is voted on and which must be genuinely agreed to by both the employer and the employees. The 2024 Agreement requires that any variation to the Agreement should be documented in writing.[4] In these regard, I adopt the reasoning of Deputy President Hampton in Construction, Forestry, Maritime, Mining and Energy Union (105N) v Flinders Logistics Pty [2022] FWC 2823 at [59]:

[59] It is well established that the normal contractual approach to implying terms is not readily applicable to enterprise agreements. This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. In addition, the legislative provisions for making and approving an enterprise agreement would tend to militate against the notion of implying terms into an enterprise agreement. Further, implied terms would need to satisfy a number of prerequisites.

• [21] The principles from BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 for implied terms in Contract can be applied to implied terms in enterprise agreements. The preconditions for when a term can be implied in contract are follows:

(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(3) it must be so obvious that "it goes without saying";

(5) it must not contradict any express term of the contract.[5]

• [22] The implied term contended for by the Applicant does not meet these criteria. The term applies to a cohort of employees who transitioned to work for the Respondent in 2002. It is not reasonable that the term should continue to exist in 2024 when it applies to a very small percentage of employees, or only the Applicant. Further, it is not so obvious it should go without saying and it is not necessary for the enterprise agreement to be effective. It is not capable of clear expression. Therefore, even if it were possible for terms to be implied into an enterprise agreement, about which the authorities tend to be circumspect,[6] the term contended for by the Applicant should not be implied into the agreement.

• [23] As to the argument that clause 27.2 expressly prevents the Respondent from ceasing paying the Heritage Band allowance, the wording of clause 27.2 should be examined:

27.2 No current Boeing Employee will receive any reduction in wage as a result of the commencement of this Agreement.

• [24] The words "as a result of" clearly indicate a causative link between the commencement of the 2024 Agreement and the reduction in wage. In this case, there is no evidence that the Respondent's decision to stop paying the heritage band allowance had anything to do with the commencement of the 2024 Agreement. Instead, the Respondent notes that the decision came about after a payroll audit in August 2023. Therefore, it was not because of the new Agreement that the "reduction in wage" occurred.

• [25] The Applicant's arguments in contract law should be dealt with in a court of competent jurisdiction.

• [26] Therefore, my answer to the question posed in the Form F10 would be as follows:

Having regards to the Boeing Defence Australia Limited Enterprise Agreement 2024 ('Agreement') and in particular clause 27.2 of the Agreement, can the employer remove the 'Heritage Band Payment' from an employee that has been receiving it?

Yes, clause 27.2 only prevents a reduction in wage which is "as a result of" the commencement of the Agreement.

• [27] This dispute should be considered resolved.

[3] AMWU v Berri Pty Ltd [2017] FWCFB 3005.

[4] Clause 4 of Boeing Defence Australia Limited Enterprise Agreement 2024

[5] BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283

[6] See eg, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260 at [18].

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