Fair Work Act 2009

s.603 - Application to vary or revoke a FWC decision

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

• [1] On 3 December 2024 I issued a decision in the matter of 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) v. Valmet Pty Ltd.[1] The decision related to applications by the respective unions for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (Act) and clause 26, Dispute Resolution Procedure, of an agreement called the Valmet Pty Ltd - B9 Opal Botany Enterprise Agreement (2023-2026) (Agreement).

• [2] In summary, the decision dealt with the question of whether the respondent company Valmet Pty Ltd (Respondent) was prevented from implementing certain changes to payment arrangements for its workforce by the operation of the Agreement, and in particular, clause 7 No Extra Claims, of the Agreement. At paragraphs [71] and [72] of the decision, I concluded that the proposed changes were extra claims the implementation of which was prevented by the operation of clause 7. That conclusion was qualified (at paragraph [72]) in relation to the implementation of the change as it related to the payment of the team leader allowance, which was one of the payment issues in dispute.

• [3] At the conclusion of my reasons I said that I did not propose to issue orders but would allow the parties to implement the outcome of the decision. I indicated that if they were unable to do so without the making of orders, the parties were granted liberty to apply. No agreement was reached in relation to the matters in dispute. Further written submissions were provided as to the form of the orders which should follow from the decision.

• [4] On 12 February 2025 I issued an order[2] in three parts (Order). The Order was in the following terms:

Further to the decision of 3 December 2024 the Commission orders as follows:

1.That the Respondent not implement the change set out in item 1 of Schedule A of the Respondent's proposed questions to be determined annexed hereto (Schedule A) unless, and then only to the extent that, the current averaging system results in an employee being paid less in any week than the amount which the employee would be entitled to be paid if paid in full in accordance with the terms of the Valmet Pty Ltd -B9 Opal Botany Enterprise Agreement 2023-2026(Agreement) for the work performed.

2.That the Respondent not implement the change set out in item 2 of Schedule A unless, and then only to the extent that, the Respondent is entitled to change the current averaging system in accordance with order 1 above.

3.That the Respondent not implement the change set out in item 3 of Schedule A where such a change would result in an affected employee being paid an hourly rate that is less than the hourly rate of pay that was paid at the time the contract was entered into by that employee and the employee commenced employment with the Respondent.

• [5] I was subsequently advised that the parties were in dispute as to the effect of the Order save and except for the third part of the Order which related to the change relating to the payment of the team leader allowance referred to in paragraph [2] above.

• [6] On 14 March 2025 the unions filed an application for the Commission to vary parts 1 and 2 of the Order pursuant to s.603(1) of the Act. The application sought the deletion of all of the words which followed the words "of Schedule A" in parts 1 and 2 of the Order. That application was opposed. Written submissions were made by the parties and the matter was determined on the papers.

• [7] The applicant unions contended that whilst the meaning and effect of the Order was clear, the Respondent had taken the view that the Order did not preclude the implementation of the proposed changes referred to at parts 1 and 2 of the Order on the basis that in a given week it was possible for an employee to be paid less under the current arrangement than they might otherwise be entitled to under the terms of the Agreement. They said that the Respondent had proceeded to implement the change on that basis and that such an approach was inconsistent with the decision of 3 December 2024 and the text of the Order. The Applicants said that variation application had been made rather than enforcement proceedings in the interests of resolving the dispute in a practical, efficient and cost-effective manner. They said the application was not an impermissible attempt to enforce the decision or Order or an attempt to re-litigate the matter but simply a response to an unexpected situation where the Respondent was prosecuting an alternative view of the Order and acting in a manner that was inconsistent with its terms. The unions said that the fact that enforcement proceedings were available did not preclude an application of this kind. The questions raised were, according to the unions, whether the proposed variation was within the Commission's powers and if so, whether it was appropriate in the exercise of the Commission's discretion to approve the variation as proposed.

• [8] The Respondent submitted that the original dispute had been resolved by the decision and the Order and that the remaining 'dispute' is whether the steps that they are taking are permitted by or are consistent with the Order. They said that the disagreement was a disagreement as to the meaning of the Order and that the appropriate course for the unions was to apply to the Federal Court for a declaration as to the meaning of the Order, and any consequential relief. The Respondent said the Commission could not issue declarations or injunctions or enforce its own decisions and that it was not appropriate for s.603 to be used as a 'work-around' to enforcement proceedings.

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(ii) if the kind of decision is prescribed by the regulations - a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2‑3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2‑4 (which deal with enterprise agreements);

(c) a decision under Part 2‑5 (which deals with workplace determinations);

(d) a decision under Part 2‑6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2‑8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3‑3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(ga) a decision under Part 3A‑2 (which deals with minimum standards orders);

(gb) a decision under Part 3A‑4 (which deals with collective agreements);

(gc) a decision under Part 3B‑2 (which deals with road transport contractual chain orders);

(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

• [10] The scope of the Commission's power to vary or revoke decisions was considered by Ross J in Grabovsky v. United Protestant Association of NSW t/a UPA.[3] In that case his Honour said:

[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?

[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.

[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so. (footnotes omitted)

• [11] The Order which the application seeks to vary is plainly a 'decision' for the purposes of s.603.[4] The Respondent did not contend otherwise. The text of s.603 is in broad terms and, as Ross J noted in Grabovsky, those terms are now more broadly expressed than predecessor provisions[5]. There are no criteria in the legislation itself that prescribes when or how the power conferred by s.603 should be exercised[6] although it is a power that has been exercised sparingly[7]. The section applies to any decision of the Commission subject to the exclusions referred to in s.603(3).[8] It has been said that it is apparent from the detail of s.603(3) that those exclusions have been drafted with some care and that "s.603(1) was intended to be applied in all its generality subject to the extant carve outs and any additions prescribed by the regulations."[9] It was not contended that the exclusions in s.603(3) apply here. In Esso Australia Pty Ltd v Australian Workers' Union[10] the High Court of Australia said:

"The Fair Work Commission has broad powers under s 603 of the Fair Work Act to vary or revoke orders, including power to vary or revoke orders retrospectively. The very considerable breadth of the power accorded by s 603 stands in contrast to the more limited power accorded by s 602 to correct "obvious errors". Thus, although it has been said that courts should eschew the exercise of inherent power to vary an order nunc pro tunc where the variation would have the effect of altering the substantive rights of the parties, the statutory power accorded by s 603 is different."[11]

• [12] In my view the power conferred by s.603 is sufficiently broad to permit a variation of the kind sought by the unions. I am also of the view that there are sound discretionary reasons why the power to vary should be exercised in this case. Plainly, the application is not a case of re-litigation or an attempt to circumvent appeal processes. No further arguments were raised as to the merits of the dispute which was the subject of private arbitration. The parties had referred the dispute to the Commission for arbitration and were at odds in relation to the effect of the Order made in settlement of the dispute. The unions contended that the application was reactive to a new circumstance, namely the prosecution of an alternative view as to the effect of the Order by the respondent. Even if that is not within the type of changed circumstances referred to by Ross J in Grabovsky, his Honour's comments in that respect are to be viewed as describing the circumstances in which the power conferred by s.603 is generally exercised rather than a strict rule as to the exercise of the power.[12]

• [13] In conferring a power of private arbitration on the Commission, absent any contrary intention, the parties take the Commission as they find it,[13] including its powers to vary decisions/orders under s.603. No contrary intention is evinced by the terms of the dispute settlement clause in the Agreement. Clause 26.2(f) provides that the parties "agree to abide by any decisions or orders made by FWC, subject to exercising any right of appeal to a Full Bench." It is appropriate to vary the Order to resolve the dispute and bring the matter to finality through the Commission's processes. The proposed variation is consistent with the reasons in the decision of 3 December 2024.

• [14] On 15 April 2025 I determined to vary the Order pursuant to s.603, as sought in the application. The Respondent asked that I provide my reasons for doing so. These are those reasons.

[1] [2024] FWC 3354.

[3] [2015] FWC 5161.

[4] See s.598.

[6] Endeavour Energy [2014] FWC 198 at [8].

[9] Asmar and Kitching v Fair Work Commission [2015] FCA 16 at [69].

[10] (2017) 271 IR 210.

[12] Glen Cameron Nominees Pty Ltd T/A Glen Cameron Trucking v Transport Workers' Union of Australia [2017] FWCFB 4636 at [41].

[13] DP World Brisbane Pty Ltd v The Maritime Union of Australia [2013] FWCFB 8557.

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