Fair Work Act 2009

s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Toyota Motor Corporation Australia Limited trading as Toyota Motor Corporation Australia

Dispute under the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2024 - application of clause relating to the Rehabilitation and Return to Work Policy - whether the Agreement allows Toyota to change the Policy to remove a long-standing rehabilitation process.

[1] This dispute relates to a proposal by Toyota Motor Corporation Australia Limited (TMCA) to change its Rehabilitation and Return to Work Policy (RRTW Policy) which currently applies to workers at TMCA's Parts Warehouses in Victoria, Queensland and Northern Territory (the relevant employees). The relevant employees are employed under the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2024 (the Agreement) and are members of the Australian Manufacturing Workers Union (AMWU).[1]

[2] TMCA wants to change the RRTW Policy by removing a long-standing return to work process which was agreed between Toyota and the AMWU in a 2005 document entitled "Toyota Motor Corporation Australia Limited Occupational Rehabilitation Program" (2005 Rehabilitation Program) and is known as the Standard Flow for Injury Management Process (SFIM Process). The AMWU disputes TMCA's right to make the proposed changes to the RRTW Policy without agreement from the AMWU and has brought a dispute under the Agreement's disputes procedure. The AMWU argues that when the Agreement is properly construed, taking into account the industrial context, the Agreement does not allow TMCA to make the proposed changes. In particular, the AMWU argues TMCA cannot make changes that are inconsistent with the 2005 Rehabilitation Program and/or the SFIM Process. TMCA argues that under the Agreement it is entitled to make the changes it seeks to the RRTW Policy.

[3] This decision determines whether TMCA can make the proposed changes under the Agreement.

[4] The questions for arbitration agreed by the parties are:

"In respect of employees covered by the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2024:

1. Is the Respondent required to obtain the consent of the Applicant in order to amend its rehabilitation and return to work policy?
2. Is the Respondent required to ensure that any amendments to its rehabilitation and return to work policy (howsoever named) are consistent with the document entitled 'Toyota Motor Corporation Australia Limited Occupational Rehabilitation Program," unless they obtain consent of the Applicant?"

[5] The relevant Agreement clauses are contained at clause 51.1 and Schedule 3 of the Agreement and provide as follows:

(a) Delivering an effective rehabilitation and return to work program for all Employees who have sustained a work related or non-work-related Injury or illness in accordance with its Rehabilitation and Return to Work Policy and associated procedures."

Rehabilitation and Return to Work Policy the TMCA policy that sets out rehabilitation and return to work practices, as amended from time to time."

[6] I set out the parties' submissions in detail below. However, in brief summary:

[7] The AMWU submits that the references in clause 51.1 to "an effective rehabilitation and return to work program" and TMCA's "Rehabilitation and Return to Work Policy" have a specific industrial meaning for the parties based on a 20-year history. In particular, the AMWU contends these phrases are understood by the parties to be referring to (or incorporating) the 2005 Rehabilitation Program/SFIM process. The AMWU further contends that the phrase "as amended from time to time" must be understood in the context of a long-standing industrial history where the Rehabilitation and Return to Work Policy can only be amended in a way that is consistent with the 2005 Rehabilitation Program/SFIM Process. The AMWU submits that a comparative analysis of other provisions in the Agreement supports its construction of clause 51.1 and Schedule 3.

[8] TMCA contends the Agreement wording supports the orthodox position that content of policy should be the prerogative of management and does not require TMCA to implement a particular process or to seek agreement from the Union to amend the policy. As long as TMCA has a Rehabilitation and Return to Work Policy, the Agreement does not limit or restrict its content. TMCA argues that its construction of clause 51.1 is supported by the surrounding industrial context. In particular, TMCA submits that while pre-2018 Agreements referred explicitly to the 2005 Rehabilitation Program/SFIM Process, the 2018 Agreement (the first post manufacturing agreement) removed any explicit reference to the 2005 Rehabilitation Program/SFIM process. The removal of the explicit reference in post-2018 Agreements illustrates the parties' understanding that the Rehabilitation and Return to Work Policy was at TMCA's discretion and no longer had to incorporate the SFIM Process. This is further supported by the removal of the SFIM Process in relation to NSW employees.

• [9] I set out the construction principles I have relied on below. However, I note that both parties referred to industrial context and history to support their construction of the relevant provisions. I am of the view that when regard is had to surrounding circumstances, in particular, the industrial context relating to long-standing return-to-work customs and practices, the meaning in clause 51.1 and Schedule 3 is ambiguous (I discuss this further below). Accordingly, in line with the approach set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114](7)-(10) I have had regard to the surrounding circumstances and history to aid my interpretation.[2]

[10] I now set out the background evidence I have had regard to in determining this dispute.

[11] The following background is based on a Statement of Agreed Facts provided by the parties or uncontested evidence, unless otherwise stated.

[12] The nature of TMCA's operations in Australia has changed considerably over the last decade. Prior to 2017, TMCA manufactured vehicles in Australia. However, in September 2017 TMCA ceased all manufacturing operations, and transitioned to a national sales and distribution company. The transition resulted in approximately 2600 manufacturing employees being made redundant. The remaining workforce (approximate 450 employees) included employees engaged in the Parts Warehouses in Victoria, Queensland, Northern Territory and New South Wales, including the relevant employees.

2.1 TMCA's Return to Work Policies and Procedures and the SFIM Process

1. 2005 Rehabilitation Program and the SFIM Process

• [13] Around 2005, when TMCA was predominantly a manufacturer, TMCA and the AMWU negotiated a rehabilitation and return to work program known as "Toyota Motor Corporation Australia Limited Occupational Rehabilitation Program" (2005 Rehabilitation Program).[3]

[14] The opening statement of the 2005 Rehabilitation Program states:

"[TMCA] is committed to the implementation of an effective Occupational Rehabilitation Program. Occupational Rehabilitation commences when a team member reports an injury and/or illness......

TMCA's accepted Standard Flow for Injury Management ... is the effective and standardised approach to Occupational Rehabilitation for all key parties."

[15] The Standard Flow for Injury Management Process (SFIM Process), also known as the ABC Process**,** was attached to the 2005 Rehabilitation Program and is at the heart of the Program. The SFIM Process sets out an 18 month three-step process to be followed in relation to injured employees returning to work. Each step of the process refers to a time frame and a number of work processes an injured team member may perform during their return to work.

• [16] The 2005 Rehabilitation Program and SFIM Process were agreed to between the parties, signed off by relevant TMCA management and the AMWU officers at the time. The signature page of the 2005 Rehabilitation Program states as follows[4]:

This program represents Toyota's commitment to Occupational Rehabilitation and RTW following a work related/nonrelated injury/illness. The following signatures are representative and indicative of its development and of mutual commitment:

• - This policy can be reviewed by either party at any time.
• - A full review will occur every 12 months.
• - This policy cannot be changed without the consensus from both parties."

[17] It is uncontested that from the commencement of the 2005 Rehabilitation Program /SFIM Process until the current date, the SFIM Process has continued to apply to the relevant employees.

1. 2011, 2018, 2020, 2023 RRTW Policy and the NSW Policy

• [18] In 2010 TMCA applied for self-insurance. Around 1 October 2011, TMCA introduced a Rehabilitation and Return to Work Policy (2011 RRTW Policy).[5] The parties are in dispute regarding whether 2011 RRTW replaced the 2005 Rehabilitation Program, or just operated concurrently to it. In any event, the 2011 RRTW Policy essentially replicates much of the 2005 Rehabilitation Program and importantly incorporates the SFIM Process. The first page of the 2011 RRTW Policy effectively includes a mirror provision to the opening statement in the 2005 Rehabilitation Program (set out at [14] above) stating at Heading E:

"[TMCA] is committed to the implementation of an effective Occupational Rehabilitation Program. Occupational Rehabilitation commences when a team member reports an injury and/or illness. ...

[TMCA's] accepted Standard Flow for Injury Management (refer to Attachment 1) is the effective and standardised approach to Occupational Rehabilitation for all key parties."

• [19] In April 2018, TMCA introduced a further rehabilitation and return to work policy (2018 RRTW Policy).[6] The parties are in dispute regarding whether the 2018 RTW replaced the 2005 Rehabilitation Program or just operated concurrently to it. In any event, the 2018 RRTW Policy, again, replicates much of the 2005 Rehabilitation Program and importantly incorporates the SFIM Process. It includes identical wording to the 2005 Rehabilitation Program and the 2011 RRTW Policy (as set out at [14] and [18] above).

• [20] In January 2020, TMCA introduced two new rehabilitation and return to work policies. The first of these RTW Policies covered employees at the Parts Centres, including the relevant employees (2020 RRTW Policy). The parties are in dispute regarding whether the 2020 RRTW Policy replaced the 2005 Rehabilitation Program or just operated concurrently to it. In any event, while the 2020 Policy contains more details than previous RRTW Policies, it again essentially replicates much of the 2005 Rehabilitation Program and importantly incorporates the SFIM Process. It includes identical wording to the 2005 Rehabilitation Program and the 2011 RRTW Policy (as set out at [14] and [18] above)[7].

[21] The second RRTW Policy introduced in 2020 applied to TMCA's employees outside of the Parts Centre. This second RRTW Policy did not apply to the relevant employees and does not include the SFIM process.

[22] On 31 August 2022, TMCA received an improvement notice from the NSW State Insurance Regulatory Authority (SIRA). The notice stated TMCA had failed to establish a RTW program that complied with the Authority's guidelines. As a result, and in consultation with the AMWU and SIRA, TMCA redrafted the RTW policy covering NSW Parts Centre employees.

• [23] On 17 April 2023, TMCA introduced two new policies. The first policy applied to the relevant employees at Parts Centres in Victoria, Queensland and Northern Territory (the 2023 RTW Policy) [8]. The 2023 RTW Policy incorporated the SFIM Process and included wording mirroring the wording from the 2005 Rehabilitation Program and other RRTW policies outlined at [14] and [18] above.

• [24] The second policy applied to NSW Parts Centre employees only and did not include SFIM process (NSW Policy).[9] The AMWU disputed the introduction of the NSW Policy at the time, and lodged a dispute in the Fair Work Commission under the disputes procedure. However, the matter was ultimately informally resolved on the basis the Fair Work Commission did not have jurisdiction to override the requirements of the NSW workers' compensation legislation.[10]

2.2 Return to work and TMCA Enterprise Agreements

• [25] Prior to 2018, consecutive Enterprise Agreements covering the relevant employees explicitly incorporated the 2005 Rehabilitation Program and the SFIM Process. For example, the Toyota Australia Workplace Agreement (Port Melbourne, Sydney and Regions) 2015, replicating the wording of previous enterprise agreements, states at clause 79[11]:

"REHABILITATION / RETURN TO WORK CO-ORDINATORS

TMCA will follow the Toyota Rehabilitation Policy and Procedure, agreed and signed by the Union to ensure that the rehabilitation of injured Employees will be carried out in an atmosphere of open communication, constructive problem solving and co-operation between both parties."

[26] It is uncontested that the reference to the "Toyota Rehabilitation Policy and Procedure, agreed and signed by the Union" is a reference to the 2005 Rehabilitation Program and SFIM Procedure.

[27] As noted above, in September 2017 TMCA ceased all manufacturing operations, and transitioned to a national sales and distribution company. It is uncontested that during negotiations for the new enterprise agreement, TMCA and the Unions agreed to modernise the wording of the enterprise agreement to reflect the post manufacturing environment. As a result, a number of clauses changed, including the provisions relating to return to work.

• [28] The Toyota Motor Corporation Australia (TMCA Toyota Parts Centre (TPC) Agreement 2018 (2018 TPC WPA) no longer included reference to a rehabilitation policy "agreed and signed by the Union". Instead, the relevant clause stated as follows:[12]

(a) delivering an effective rehabilitation and return to work program for all Employees who have sustained a work related or non-work-related Injury or illness in

accordance with its Rehabilitation and Return to Work Policy and associated

[29] The parties are in dispute regarding whether the change in wording changed the meaning of the rehabilitation and return to work clause (and the commitment on TMCA to apply the SFIM process), or whether it just updated the wording.

[30] Mr Italiano, TMCA Health and Wellbeing Manager, provided contemporaneous shared notes regarding the 2018 negotiations in a document entitled "Feedback Document." The Feedback document shows that TMCA proposed removing the Rehabilitation and Return to Work Clause from the Agreement and the AMWU objected to this.

[31] The contemporaneous Feedback Document reflects that the AMWU sought to maintain the clause, and TMCA responded by stating it did not agree to maintain the clauses but "could look at simplified wording that retains the important aspects of the clause." In the contemporaneous Feedback Document TMCA further provided comment on 22 February 2018 as follows:

"The following items 79-83 have been redrafted into a new policy. If the union requires these clauses are also contained within the WPA, we will need to reincorporate them with changes to process (but fundamentally not altering worker's rights)."[13]

[32] The 2018 RRTW Policy, including the SFIM Process, was provided to employees prior to the vote on the 2018 Agreement.

[33] The clause in the 2018 TPC Agreement was subsequently included in the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2021 and then again in the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2024 with a nominal expiry date of 30 July 2026.

[34] At the time of the vote for the 2024 Agreement, the relevant employees were provided with the 2023 RRTW Policy, including the SFIM process, as well as the NSW policy.

[35] In October 2024, TMCA commenced consultation with the AMWU to introduce a new single national policy that would harmonise it return to work policies (the Proposed Policy). Relevantly, the Proposed Policy does not include the SFIM process.

• [36] The Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[14] (AMWU and Berri) considered the key principles of interpretation in detail at paragraph 114 of the decision. I rely on the principles outlined in AMWU and Berri. Below I summarise the main principles I have had reference to in determining the construction of clause 51.1 and Schedule 3:

• • The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read within the agreement as a whole and in context.[15]

• • The words should be interpreted in their industrial context, in the light of the customs and working conditions of the industry.[16]

• • Context may include the text of the agreement viewed as a whole, the place of the disputed provision within the agreement and the legislative framework.[17] Context may also include the history of the provision or phrase.[18]

• • The task of interpreting an agreement does not involve "rewriting the agreement to achieve what might be regarded as fair or just outcome. The task is always one of interpreting the agreement produced by the parties."[19]

• • The common intention of the parties is to be identified objectively by reference to what a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.[20]

• • It is relevant to take into account how employees covered by the Agreement might reasonably have understood the provisions when they voted to approve it.[21]

1. Evidence of surrounding circumstances etc.

• In relation to admitting extrinsic evidence Berri provides the following guidance:

"In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstances will be admissible to aid the interpretation of the agreement."[22]

• • The admissibility of evidence of surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of objective facts is to be distinguished from evidence of the subjective intentions of the parties.[23]

• • Evidence of objective background facts may include: evidence of prior negotiations, notorious facts of which knowledge is to be presumed; and evidence of matters in common contemplating and constituting a common assumption.[24]

• • In relation to evidence of prior negotiations, it may not be appropriate for evidence regarding matters discussed in bargaining to be considered unless such matters rise to the level of matters that would be notorious or known to those intended to be bound by the instrument who did not participate in the negotiations or dealings by which the terms were formulated.[25]

• • In some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.[26]

[37] The task before me is to construe the meaning of clause 51.1 and Schedule 3, and then to answer the questions for arbitration.

[38] The AMWU submits that clause 51.1 refers to and requires TMCA to follow the 2005 Rehabilitation Program/SFIM Process. In support of this contention the AMWU contends:

• The words must be understood in the context of a twenty-year history of rehabilitation and return to work practices in relation to the relevant employees and the long-standing return to work agreement between the parties that has not been changed without Union consent.

• The reference to "an effective rehabilitation and return to work program" in clause 51.1 is a reference to the 2005 Rehabilitation Program and/or the SFIM procedure. This is because since 2005, the SFIM Process is the only document described by both parties as the 'effective' approach to occupational rehabilitation.

• The change of wording in the 2018 Agreement does not change the fact that the 2005 Rehabilitation Program/SFIM Process is incorporated into the Agreement. The AMWU contends that the 2018 negotiations did not change any obligations on the parties, the parties merely agreed to modernise the language. There is no evidence of any claim from the company to remove the SFIM process, there is no evidence of employees being informed that there was going to be a change to the status quo. Under s180(5) of the Act the employer is obliged to explain changes, and this did not occur.

• The fact that the obligations remained the same in 2018 is supported by the fact that prior to the vote the relevant employees were provided with the 2018 RRTW Policy which incorporated the SFIM Process, and reflected previous practice.

• TMCA shared the 2023 RRTW policy, which included the SFIM Process at the time of the vote on the current 2024 Agreement. Genuine agreement was reached on the basis that the SFIM Process was understood to apply. The 2023 RRTW policy that employees were provided with at the vote reflected the practice for last 20 years.

• [39] TMCA submits that the wording in clause 51.1 supports the orthodox position that the content of policy should be the prerogative of management and does not require TMCA to implement a particular process or to seek agreement from the Union to amend the policy. As long as TMCA maintains a policy capable of fitting the description of a Rehabilitation and Return to Work policy_[27]_, the Agreement places "no controls or limitations or restrictions as to its content".[28]

• [40] TMCA accepts that prior to the 2018 Agreement, the enterprise agreements bound TMCA to follow the 2005 Rehabilitation Program/SFIM process. However, critically clause 79 was removed in the 2018 Agreement and the changes to the clause shows clearly TMCA is not bound by the 2005 Rehabilitation Program/SFIM Process. TMCA rejects the AMWU's argument that the 2018 changes did not alter the obligations in relation to following the SFIM Process. In particular, TMCA contends it was a notorious fact that the 2018 Agreement was being updated as the first non-manufacturing agreement to reflect the new industrial environment.[29]

[41] In relation to 2018 negotiations, TMCA contends that the contemporaneous Feedback Document supports its construction because it shows that TMCA wanted to remove the RRTW Policy from the Agreement. TMCA contends the reference to "retain workers' rights" in the Feedback document is referring to "return to work and other medical rights of workers" and not to a Union agreed process.

[42] I reproduce the relevant Agreement clauses below for convenience.

(a) Delivering an effective rehabilitation and return to work program for all Employees who have sustained a work related or non-work-related Injury or illness in accordance with its Rehabilitation and Return to Work Policy and associated procedures.

Rehabilitation and Return to Work Policy the TMCA policy that sets out rehabilitation and return to work practices, as amended from time to time."

• [43] Clause 51.1 provides that TMCA is committed to performing certain actions (namely delivering an effective rehabilitation and return to work program) in accordance with "its Rehabilitation and Return to Work Policy and associated procedures." I find that this clause is not just an aspirational provision, or a provision simply alerting employees to the fact that TMCA has a Rehabilitation and Return to Work Policy.[30] Given the clause is in an enterprise agreement, it can be inferred that such a provision is intended to establish binding obligations.[31] On a plain reading of the text, clause 51.1 binds TMCA to certain actions. In this provision "committed to" could be replaced by "obligated to" or "will deliver". At the very least TMCA is required to:

• Deliver "an effective rehabilitation and return to work program."
• Deliver such a program in accordance with its "Rehabilitation and Return to Work Policy" and "associated procedures".

1. Ordinary meaning of the words in their industrial context

[44] When I have regard to the industrial context of clause 51.1 and Schedule 3, I am of the view that a number of ambiguities arise, and the provisions are susceptible to more than one meaning. This is because there is a unique history regarding rehabilitation and return to work at TMCA, and this history may impact on the meaning of certain words.

• [45] The industrial context of an Agreement provision may include the history of a provision or phrase. As described by his Honour, Burchett J in the Full Court decision Short v FW Hercus Pty Ltd[32]:

"Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment."

[46] I find that the wording in clause 51.1 contains "soil" that refers back to the 2005 Rehabilitation Program/SFIM Process.

[47] First, the reference in clause 51.1 that "TMCA is committed to... delivering an effective rehabilitation and return to work program..." closely resembles the wording initially found in the opening statement of the 2005 Rehabilitation Program, and then reiterated in every RRTW Policy facilitating the SFIM Process since. The opening statement of the 2005 Rehabilitation Program, which is replicated in the 2011, 2018, 2020 and 2023 RRTW Policy, states:

"[TMCA] is committed to the implementation of an effective Occupational Rehabilitation Program. ...."

[48] The 2005 Rehabilitation Program and 2011, 2018, 2020 and 2023 RRTW Policy then identify the SFIM Process as the effective approach for all key parties.

• [49] Second, the parties have previously referred to the 2005 Rehabilitation Program and SFIM Process as the "Toyota Rehabilitation Policy and Procedure". This is despite it clearly not being a standard Company policy, but rather a procedure agreed between TMCA and the Union. The 2005 Rehabilitation Program refers to itself as a policy - on the signature page stating, "This policy cannot be changed without consensus." More importantly, in Agreements before the 2018 Agreement, the parties explicitly refer to the 2005 Rehabilitation Program/SFIM Process as the "Toyota Rehabilitation Policy and Procedure, agreed and signed by the Union...".[33]

[50] Given the industrial context and "soil" of the words in the provision, I am of the view the following ambiguities arise:

• Does "an effective rehabilitation and return to work program" reference the SFIM Process, or simply any program that meets that description?
• Does the "Rehabilitation and Return to Work Policy" or the "TMCA policy that sets out rehabilitation and return to work practices" reference the 2005 Rehabilitation Program, the Toyota policy that supports the implementation of the SFIM Process or simply any company policy that deals with return to work?
• Does associated procedures refer to the SFIM Process or simply any procedures associated with the RRTW Policy?
• Does the phrase "amended from time to time" encompass amendments that would significantly change the RRTW Policy by removing the SFIM process?

[51] Accordingly, and following the approach in Berri v AMWU, I have had regard to the industrial history, 2018 agreement negotiations and other surrounding circumstances to aid my interpretation of the provisions.

1. History of Rehabilitation and Return at TMCA

[52] TMCA's return to work practices and processes in relation to the relevant employees are unique to TMCA. For the last 20 years, the 2005 Rehabilitation Program/SFIM Process has been at the heart of TMCA return-to-work practices in relation to the relevant employees. The SFIM Process is based on a 2005 agreement between TMCA and the AMWU which states it cannot be changed without consensus.

[53] Importantly, the SFIM Process includes some beneficial working conditions for employees including an extended return to work time frame.

[54] The fundamental importance of the SFIM Process to TMCA's return-to-work practice has been explicitly acknowledged in every iteration of RRTW Policies applying to the relevant employees since 2005.Whilst over the years TMCA has updated some of the peripheral matters around the SFIM Process in policy documents supporting the implementation of the SFIM Process (2011, 2018, 2020, 2023 RRTW Policies), there has never been a change to the SFIM Process. I find that the 2011, 2018, 2020 and 2023 RRTW Policies did not "replace" the 2005 Rehabilitation Program/SFIM Process. Rather these RRTW Policies can be seen as documents facilitating the 2005 Rehabilitation Program/SFIM Process.

[55] Following the introduction of the 2005 Rehabilitation Program/SFIM Process the parties also agreed to explicitly incorporate the 2005 Rehabilitation Program/SFIM Process into their enterprise agreements. Agreements prior to the 2018 Agreement referred to the Rehabilitation Program/SFIM Process as the "Toyota Rehabilitation Policy and Procedure, agreed and signed by the Union."

[56] This industrial history of rehabilitation and return to work at TMCA reveals that for many years the "Rehabilitation and Return to Work Policy and Procedures" were synonymous with the 2005 Rehabilitation Program/SFIM Process.

[57] TMCA contends this all changed with the introduction of new wording in the 2018 Agreement. I now turn to consider the 2018 negotiations and the 2018 Agreement.

[58] It is uncontested that in relation to Agreements prior to the 2018 Agreement, the reference to TMCA's Rehabilitation and Return to Work Policy and procedures did refer to the 2005 Rehabilitation Program/SFIM Process (or to RRTW Polices supporting the SFIM Process).

[59] Following the 2018 negotiations, the wording in the

Agreement changed (see paragraphs [25] to [28] above). For the purpose of this decision, the important change is as follows. In the pre-2018 Agreements, TMCA is committed to the "Toyota Rehabilitation Policy and Procedure, agreed and signed by the Union..." whereas from the 2018 Agreement onwards TMCA is committed to "its Rehabilitation and Return to Work Policy and associated procedures" with no reference to Union agreement or signature, and defined in Schedule 3 to be the TMCA policy that sets out rehabilitation and return to work practices, as amended from time to time.

[60] TMCA contends that the changes to the return-to-work agreement provision in the 2018 negotiations, in particular the removal of the phrase "agreed and signed by the Union", makes it clear that the Agreement provision no longer required TMCA to act in accordance with the SFIM Process.

[61] The AMWU contends that the 2018 negotiations did not change any obligations on the parties, the parties merely agreed to modernise the language.

[62] In updating agreement language, it is incumbent on negotiating parties to be diligent in reviewing clauses to ensure rights and entitlements are not inadvertently removed, or the meaning of a provision inadvertently changed. Witnesses were not cross-examined on their evidence in relation to the negotiations and ultimately, I have no reason to doubt that subjectively, the AMWU believed clause 51.1 continued to refer to the 2005 Rehabilitation Program/SFIM Process.

[63] Of course, neither TMCA nor the AMWU's subjective intentions regarding the negotiations are particularly important to the construction of 51.1. Rather, in considering the 2018 negotiations, I have been mindful to have regard to matters that were "notorious facts" or matters known to employees who did not participate in the negotiations. Such matters include:

• The 2018 Agreement was the first post-manufacturing agreement, and the parties had agreed to update the wording to reflect the new industrial environment.
• TMCA did not have a specific claim regarding changing the effect of the return-to-work provision or removing the requirement to follow the SFIM Process. There is no evidence that at any stage removing benefits from the return-to-work provision was discussed with employees.
• The provision relating to Rehabilitation and Return to Work changed as a result of the negotiations. Of note:

• Clause 79 in the pre- 2018 agreements is just under half a page long. It includes the following:
  • A commitment from TMCA to the "Rehabilitation Policy and Procedure, agreed and signed by the Union"
  • For training for OHS representatives
  • Details for the arrangement of medical appointments.
  • For consultation with OHS representatives.

• Post 2018 agreements include a shorter, simplified clause that refers to TMCA's commitment to "delivering an effective rehabilitation and return to work program... in accordance with its Rehabilitation and Return to Work Policy and associated procedures", and to providing for training of OHS representatives.

• The 2018 RRTW Policy (which incorporates the SFIM Process) was provided to employees when they voted on the 2018 Agreement.

• [64] I have also had regard to the contemporaneous Feedback document that records that TMCA wanted to remove the return-to-work provision and the AMWU wanted to maintain the clause. The Feedback document records that TMCA agreed to include a redrafted provision "with changes to process (but fundamentally not altering workers' rights)."[34]

[65] Having regard to the matters above, I am not satisfied on the evidence before me that the parties agreed in the 2018 negotiations to change the effect of the Rehabilitation and Return to Work provision. While the parties had agreed to modernise the wording in the agreement, the contemporaneous notes support the position that this was not to be at the expense of reducing workers' rights in relation to return-to-work matters. The removal of the SFIM Process does remove employee benefits.

[66] Rehabilitation and return-to-work are matters that are of particular importance to employees and their representatives. It would be, at the very least extremely surprising, that employees would be prepared to forgo benefits relating to return to work purely to assist with the goal of simplifying an agreement.

• [67] I find that at the time of the vote, employees understood they were voting for an Agreement that, in relation to return-to-work, "fundamentally did not alter their rights".[35] The 2018 RRTW Policy (which incorporates the SFIM Process), and reflected the previous decade of practice, was provided to employees prior to the vote on the 2018 Agreement. In this context, I find a reasonable person in the position of an employee at the time of the vote on the 2018 Agreement would understand the new clause 51.1 to continue to refer to and protect the SFIM Process.

[68] This position is fortified by the fact that since the 2018 negotiations, despite the change in wording in post 2018 agreements, the SFIM Process has continued to apply to the relevant employees.

• [69] With respect to the change in 2023 in relation to the NSW employees, it is clear that the AMWU contested TMCA's right to remove the 2005 Rehabilitation Program/SFIM Process. The AMWU filed a dispute relating to this matter in the Commission. However, ultimately the matter was informally resolved on the basis that the Fair Work Commission did not have jurisdiction to override the requirements of the NSW workers' compensation legislation.[36]

[70] Having regard to the industrial context - including the history of a unique return to work process at TMCA, the "soil" in clause 51.1, the 2018 negotiations and subsequent conduct - I find the words in clause 51.1 have a particular meaning for the parties. In particular I find that the phrases "Rehabilitation and Return to Work policy" and "associated procedures" in their industrial context, continue to carry the same meaning that was in similar wording in pre-2018 agreements, and do not simply refer to a standard (unilaterally decided) company policy and related procedures.

[71] At the time of the 2024 vote, the relevant employees were provided with the 2023 RRTW Policy which facilitates the SFIM Process. I find that given the industrial context, a reasonable person, in the shoes of a relevant employee voting on the 2024 Agreement would understand clause 51.1 to require TMCA to act in accordance the 2023 RRTW Policy facilitating the SFIM Process. More than this I find that a reasonable person in the shoes of a relevant employee would understand the reference to Rehabilitation and Return to Work Policy to be reference to a document facilitating the SFIM Process.

[72] I further find that "associated procedures" has maintained its meaning from pre-2018 agreements and is a direct reference to the SFIM Process.

3.4 Does the phrase amended from time to time allow TMCA to remove the SFIM Process from the RRTW Policy?

[73] In relation to the phrase "amended from time to time" the AMWU makes the following arguments:

• There is a long and notorious practice in relation to amendments to the RRTW Policy that they must be consistent with the 2005 Rehabilitation Program/SFIM Agreement, unless there is Union agreement.

• 'Amended from time to time' is in the grammatically passive voice, and it is silent on how amendments occur.

• The position that the RRTW Policy cannot be amended without agreement from the AMWU is supported by a comparative analysis of other clauses in the Agreement. Where other policies are referred to in the Agreement, the Agreement specifically provides that TMCA can unilaterally amend the policy, or alternatively TMCA's right to unilaterally amend is included in the Policy itself.

• The phrase "amended from time to time" has limits and does not allow TMCA to replace the existing policy. The AMWU refers to dictionary definitions of "amend" as opposed to "replace" and argues amendment is properly described as a "minor change, an improvement, or an adjustment", not a substantial change or substitution. In this regard the AMWU points to other terms in the Agreement that refer to "amended and replaced from time to time" such as clause 13.2 "Company Sponsored Training Procedure".

[74] TMCA contends that on a plain reading of the provision "amended from time to time" TMCA can amend the RRTW Policy to remove the SFIM process. TMCA relies on Macquarie dictionary definition of amend meaning "correction, improvement." TMCA argues the removal of the SFIM process is a correction or improvement - given it would allow TMCA to implement an improved, fit for purpose policy.

[75] TMCA contends that the addition of the phrase "amended from time to time" in the 2018 Agreement reflects the objective intention of the parties that TMCA could amend the RRTW Policy as they saw fit.

[76] TMCA rejects the Union's arguments regarding comparative analysis of other policies referred to in the Agreement on the basis that they are inconsistent.

1. Consideration - "amended from time to time"

[77] It is uncontested, that prior to the 2018 Agreement TMCA could not amend the RRTW Policy in a way that was not consistent with the 2005 Rehabilitation Program/SFIM Process. Furthermore, even after the 2018 Agreement, in relation to the relevant employees the RRTW Policy has never been amended in a way that is inconsistent with the 2005 Rehabilitation Program/SFIM Process.

[78] If the RRTW Policy was a standard workplace policy, it would be reasonable to assume that the amendments could occur at the Company's discretion. However, for reasons given above I have found that the Rehabilitation and Return to Work Policy referred to in clause 51.1 is not a standard policy, but rather a document that supports a long-standing custom and practice, the agreed SFIM process. In its industrial context, the phrase "amended from time to time" in relation to the RRTW Policy has a clear meaning between the parties - amendments are allowed to the RRTW Policy, as long as the SFIM process is maintained and changes are consistent with the SFIM process.

[79] TMCA contends, that while pre-2018 amendments to the RRTW policy had to be in accordance with the SFIM Process, this was no longer the case after the changes to the agreement in 2018. For the reasons given above I do not agree that the 2018 negotiations introduced a change to the return-to-work requirements under the Agreement. If the parties had meant to change the status quo in relation to amending the RRTW Policies, this needed to be explained to employees and expressed in clear, unambiguous wording indicating TMCA could unilaterally change the document. Such wording can be found in other provisions in the Agreement such as the definition of Scheme in Schedule 3 which provides:

"Scheme ... means the Employee and Family Vehicle Purchase Scheme ... as amended by TMCA from time to time."[37]

[80] In any event, while Schedule 3 envisages that the RRTW Policy may be amended from time to time, there is no provision allowing amendments to associated procedures. For reasons given above, I have found that "associated procedures" is a reference to the SFIM Process.

3.5 What about the NSW employees and the NSW policy?

[81] TMCA argued that as both the 2023 RRTW Policy and the NSW Policy were provided to the relevant employees at the time of the vote, the relevant employees must have understood that clause 51.1 could apply to a return-to-work policy without the SFIM Process - meaning the RRTW Policy could be amended to remove the SFIM Process. I do not accept this argument as the NSW Policy clearly did not apply to the relevant employees at the time, and it is unclear why the relevant employees would have had any regard to the NSW Policy.

[82] The dispute argued before me concerned the relevant employees. No real argument or evidence was put to me in relation to what clause 51.1 means in terms of NSW employees. Accordingly, I limit my findings to the relevant employees only. However, I do think the fact that NSW employees were provided with the NSW Policy which specifically related to them at the time of the vote, and the unique circumstances behind the creation of the NSW Policy, would be relevant factors in determining the application of clause 51.1 to NSW employees.

[83] I have found this to be a difficult decision. In large part this is because the Agreement words in their specific industrial context at TMCA have quite a different meaning to what they would in another industrial context.

[84] However, after considering the principles of construction, the industrial context, history of the agreement provisions and the 2018 Agreement negotiations, I have found that clause 51.1 requires TMCA to deliver a rehabilitation and return to work program in accordance with the SFIM Process. This is because I have found that the reference to the Rehabilitation and Return to Work Policy has carried its meaning forward from pre-2018 agreements and means a document that facilitates the SFIM Process. I have further found that "associated procedures" refers to the SFIM Process. In addition, I have found that while TMCA is entitled to amend its RRTW Policies (the documents supporting the facilitation of the SFIM Process), it cannot do so in a way that is inconsistent with the SFIM Process without Union support. Therefore, I have answered the questions for arbitration as follows:

"In respect of employees covered by the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2024:

1. Is the Respondent required to obtain the consent of the Applicant in order to amend its rehabilitation and return to work policy? No, subject to 2 below.

1. Is the Respondent required to ensure that any amendments to its rehabilitation and return to work policy (howsoever named) are consistent with the document entitled 'Toyota Motor Corporation Australia Limited Occupational Rehabilitation Program," unless they obtain consent of the Applicant?" Yes.

• [85] Finally, I want to acknowledge that this has also been a difficult decision, because it appears to me there are sound reasons for TMCA wanting to standardise its approach across states and have a single policy. While I have not considered (or have been required to consider) the merits of the new Proposed Policy versus the SFIM Process in any great detail, TMCA raises what appear to be some legitimate concerns with the SFIM Process. This is particularly so in relation to the SFIM Process not facilitating a flexible response to rehabilitation.[38]

• [86] Throughout the hearing, the AMWU stated that they are open to reasonable amendments to the SFIM Process and that they would continue to work constructively with TMCA to reach an agreed position.[39] They have made this commitment in front of the Commission, and I expect them to abide by it.

• [87] I also note and accept the TMCA's evidence that the proposal for removing the SFIM Process was not intended to reduce entitlements for employees or to make it easier for TMCA to terminate long-term injured employees.[40]

[88] I urge parties to sit down together as soon as possible with a view to reaching an agreed outcome on a new return to work procedure. Noting that the current Agreement expires on 30 July 2026, the Commission may be able to assist with this process under s240 dispute.

[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers Union (AMWU).

[2] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114].

[13] DHB 1996 Italian Witness Statement.

[14] [2017] FWCFB 3005.

[15] Workpac Pty Ltd v Skene [2018] FCAFC 131 at [197].

[16] Ibid and Geo A Bond & Co (In Liq) v McKenzie [1929] AR (NSW) 498 at 503-504.

[21] United Firefighters' Union of Australia v Fire Rescue Victoria [2025] FWCFB 54 (UFU v FRV) at [47].

[25] Sheehan v Thiess Pty Ltd [2019] FCA 1762, Colvin J at [22]; Linfox Armaguard v TWU [2024] FWCFB 373 at [42].

[30] Compare for example Clause 12(a) of the Agreement which deals with TMCA's Workplace Relationships Policy and states "TMCA's workplace Relationships Policy outlines the acceptable and unacceptable behaviours expected of Employees. Employees are required to adhere to this policy at all times, and act in a respectful and professional manner."

[34] DHB 1996 Italiano Witness Statement.

[35] Ibid as stated in the contemporaneous Feedback Document.

[36] DHB 1997 Italiano Witness Statement at [30].

[37] DHB 1629 2024 Agreement Schedule 3.

[38] I note that while TMCA contended the SFIM process was removed in NSW because it conflicted with NSW workers compensation legislation, it was not seriously contended that the SFIM Process contradicted any other workers compensation legislation.

[39] DHB 1020 Cummaudo Witness Statement at [3] and DHB 1023 Ross Witness Statement at [8].

[40] DHB 1859 Choo Witness Statement at [18].

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