The devil is in the detail; drafting enterprise agreements

There is often a direct clash between management prerogative and the quasi-legislative provisions of an enterprise agreement. This is particularly evident when an EA contains a no-extra claims clause. In Australian Municipal, Administrative, Clerical and Services Union v North East Water (2014] FWC 6922 when arbitrating a dispute between the parties about the effect of a no-extra claims clause in an EA, the Fair Work Commission refused to sanction an attempt by an employer to remove the personal use of company motor vehicles from some employees, pursuant to an express policy entitling it to do so, which pre-dated the EA, because the Commission regarded the move as a breach of the no extra claims clause in the EA.
Commissioner Wilson rejected the employer’s argument that the move did not contravene the no-extra claims clause because the issue had not formed part of the bargaining for the EA, despite recognising that (a) there were no specific provisions in the agreement which dealt with the use of motor vehicles and (b) the Full Federal Court has held on a number of occasions that there is no legal obstacle to an employer varying a policy provided that an applicable enterprise agreement does not deal with the specific policy.
Commissioner Wilson held that the employer’s intended change constituted a further claim under the EA because it attempted to change a condition of employment which he held was prohibited by the no further claims clause given its explicit wording.