FEDERAL COURT OF AUSTRALIA
Marmara v Toyota Motor Corporation Australia Limited [2013] FCA 1351
SUMMARY
12 December 2013
MELBOURNE
SUMMARY
1 In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the publication of the Court’s reasons for judgment. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at http://www.fedcourt.gov.au/ together with this summary.
2 The Toyota Motor Corporation of Australia (TMCA) Workplace Agreement (Altona) 2011 (“the Agreement”), is an enterprise agreement made in accordance with Pt 2-4 of the Fair Work Act 2009 (Cth) (“the Fair Work Act” or “the Act”).
3 The Agreement binds Toyota and also binds the applicants. Each of the applicants are employees of Toyota working at its plant in Altona.
4 There is a ‘no extra claims’ provision in cl 4 of the Agreement as follows:
The parties agree they will not prior to the end of this Agreement:
• Make any further claims in relation to wages or any other terms and conditions of employment.
5 On 11 and 15 November 2013, Toyota proposed that the Agreement be extensively varied. The proposed variations seek to reduce employee entitlements and provide cost savings to Toyota.
6 The applicants contended that Toyota’s proposed variations to the Agreement constituted the making of “further claims” and that Toyota has breached the Agreement and contravened s 50 of the Act. The applicants seek relief including an injunction that until the nominal term of the Agreement expires on 6 March 2015, Toyota be restrained from making any claims in relation to the wages or any other terms and conditions of employment of employees covered by the Agreement.
7 Toyota denied that it had made “further claims” within the meaning of the no extra claims provision in cl 4 of the Agreement. It further contended that, if it has made further claims, the no extra claims component of cl 4 is:
• an “objectionable term” and rendered ineffective by s 253(1) of the Act;
• not a “permitted matter” within the meaning of s 172(1) of the Act; or
• otherwise inconsistent with the Act and thus invalid.
8 The proceeding, which has been dealt with on an expedited basis, raises complicated issues about the nature of the scheme for enterprise bargaining provided by the Fair Work Act. A central question in the proceeding is whether the scheme of the Act contemplates that through the consensual agreement making process provided by the Act, the parties to enterprise agreements may exclude themselves from the consensual variation process provided by the Act?
9 I have determined that the proposed variations made by Toyota are “further claims” within the meaning of the no extra claims component of cl 4 of the Agreement. I have also determined that the no extra claims component of cl 4 is not an “objectionable term” and is a term about “permitted matters”. It was therefore not rendered ineffective by s 253(1) of the Act, was operative at the time Toyota communicated its proposed variations to its employees and remains operative.
10 Having considered the scheme of the Fair Work Act, I have concluded that despite the agreement of the parties to an enterprise agreement to do so, an enterprise agreement which ousts or excludes the capacity of an employer and its employees to vary their agreement in accordance with the consensual process provided for by the Act is, to that extent, inconsistent with the scheme of the Act and invalid.
11 Whilst the no extra claims component of cl 4 restricts the current capacity of Toyota and its employees to vary the wages and other terms and conditions of employment contained in the Agreement, there is no restriction on cl 4 being varied or removed in accordance with the variation process provided by the Act. Accordingly, as cl 4 is not entrenched by the Agreement and may be removed, it does not foreclose the capacity of Toyota and its employees to vary the wages and other terms and conditions of employment contained in the Agreement in accordance with the process provided by the Act, should they choose to do so. Clause 4 is therefore not inconsistent with the Act and is valid.
12 It follows that in making the further claims Toyota made when communicating its proposed variations, Toyota breached cl 4 of the Agreement and contravened s 50 of the Fair Work Act. However, it does not follow that an injunction, in the form sought by the applicants, restraining Toyota from making any claims in relation to wages and other conditions of employment until 6 March 2015, should be granted.
13 I have determined to give the parties a short opportunity to consider my reasons for judgment before requiring them to bring in minutes of proposed orders that reflect those reasons.
