Making sense of agreements


Making sense of agreements

Parties to agreements and contracts have specific circumstances in mind when drafting provisions, however the passing of time often means the terms of these instruments need to be clarified.


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Parties to agreements and contracts have specific circumstances in mind when drafting provisions, however the passing of time often means the terms of these instruments need to be clarified.

Six cases noted here illustrate points of contention.

New position kept incumbency rights

The question was whether the role of network mains manager (NMM) was a 'changed' or 'unchanged' position compared to the applicant's previous position of principal engineer network standards (PENS).

The applicant submitted detailed analysis of the  two positions in support of his case: the employer failed to challenge the  accuracy of analysis to any significant extent. Consequently NMM should be considered an 'unchanged position'.

The applicant therfore had certain incumbency rights over the NMM position, including direct appointment or merit selection with his existing employment conditions intact.

T v E [Co] [2015] FWC 51- Hamberger SDP - 9 January 2015 

Change of shift, not change of roster

An employer notified nine drivers they would be required to transfer to a rotating shift pattern in line with other drivers of company.

The union submitted the move was not a change of shift, but a change in roster, and consultation provisions were not complied with.

The commission was satisfied the consultation terms were adhered to. However this was not crucial to whether the employer could make the proposed changes. In the absence of any term in an industrial instrument preventing an employer from making changes to shift arrangements, an employer has managerial prerogative to alter the pattern of shifts worked by employees.

Union v L P/L [2015] FWC 62 - Gregory C - 7 January 2015

Powers of private arbitration considered

The Commission was acting as a private arbitrator, as provided under the parties’ agreement. As such it did not otherwise require the parties to submit to binding procedures and enforceable outcomes that would determine their legal rights and liabilities.

This did not confer unfettered power upon the parties to agree to the scope of power they vested with the Commission.

The Commission found that as there were no employees to whom the agreement applied, if it declared a contravention of the Act this would constitute a judicial function. The Commission therefore held it had no jurisdiction to hear the matter.

Union v C [2014] FWC 7970 - Richards SDP - 9 December 2014

Leave in advance not to be forced

The dispute related to the ability of a company to force employees to take leave in advance. The enterprise agreement provided that an employee "may not be required to take more than 14 days of leave in advance".

The Commission found the ability of an employer to require an employee to take time off in advance was not intended to be open-ended. 

The company/employer was not able to force employees to accrue ‘red days’ through forced leave in advance.

Union v O P/L [2014] FWC 7250 - Cloghan C - 27 November 2014

No relocation expenses for employee

This dispute was about the proper application of relocation expenses with regards to clauses in the Victorian Police Force Enterprise Agreement 2011.

The employer produced a policy requiring employees to seek approval as a factor in support of a decision for relocation expenses. The Commission accepted the employee did not seek approval.

The Commission found the employer did not consider the distance to be travelled by the employee as related to response time and availability. Therefore the Commission was unable to conclude the employer’s decision not to pay relocation expenses was unreasonable.

P v V [2014] FWC 8702 - Smith DP - 5 December 2014

No basis for allowance to be paid to employees on leave

The application to deal with a dispute under procedure for dealing with disputes in the company and the Australasian Meat Industry Employees’ Union Agreement 2011.

It was clear to the Commission from the terms of agreement clause that a rail allowance paid as a varying daily amount depended on the number of hours worked boning beef at rail. There was no rational basis for the rail allowance to be paid to employees on leave.

Union v W Ltd) [2014] FWC 8620 - Asbury DP - 1 December 2014 

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