When it comes to enforceability of the terms of enterprise agreements, it sometimes seems that employers’ rights are not so secure compared to employees’ rights.  A company has had to fight to access a right that it had negotiated, despite its entitlement being unambiguously included in its enterprise agreement. 

The dispute arose when the company was experiencing commercial pressures and wanted to reduce costs by changing some of its employee’s base operations to sites other than its headquarters. This was to eliminate travel expenses and overtime rates paid for travel outside of ordinary hours to locations other than their nominated base under the agreement. Concomitantly, this would reduce extra travelling time and inconvenience for employees.                    

The union took the matter to the FWC, arguing that the proper construction of the clause about base operations did not allow the company to nominate a site other than its headquarters. 

The original FWC decision was in favour of the union’s position. However, on appeal, a FWC full bench accepted the company’s argument that on proper construction, it had a right, in accordance with its agreement, to nominate actual work locations at its discretion. It also said that the agreement did not create an entitlement to travel payments. 

On appeal by the union, the Full Federal Court upheld the FWC full bench decision, noting that there was nothing disharmonious or uncooperative about the company’s actions, particularly given that it even offered to negotiate the inclusion of a “grandfather clause” for the travel and overtime rates. 

This case highlights the need for employer rights in agreements to be very clearly spelt out. This attention to detail means that the employer is then in the position to argue, as in this case, that all provisions of an enterprise agreement are equally enforceable. In this case, the wording in the agreement saved the day, albeit not before a lot of uncertainty and angst had been encountered. 

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