ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – decision at first instance involved the exercise of dispute arbitration powers conferred upon the Commission by clause 33, Grievance and Dispute Settlement Procedure, of the Australian Paper (Enterprise) Agreement, 2016-2019 Maryvale Mill Mechanical – Maintenance and Engineering Store (Agreement) – the subject of the arbitration concerned whether a proposal by the appellant to reduce its current complement of boilermakers by three was permissible under clause 39, Security of Employment, of the Agreement – the AMWU contended that the implementation of the appellant’s proposal would contravene clause 39.2 because it infringed the prohibition against retrenchments – the appellant contended that its proposal involved a ‘significant change’ and thus fell within one of the exceptions to the retrenchment prohibition in clause 39.2 and was permissible – the Commission determined that it was not permissible – grounds for appeal submitted included the Commission erred reading clause 39.2 and erred in applying principles of statutory construction in treating clause 39.2 as a provision to be read beneficially in favour of employees – Full Bench considered permission to appeal should be granted – consideration of the appeal required, firstly, the identification of the proper construction of clause 39.2 and, secondly, the correct application of clause 39.2, so construed, to the facts of this case – necessary to interpret clause 39.2 in the immediate context of clause 39 as a whole and in the wider context of the Agreement as a whole – heading of clause 39 ‘Security of Employment’ is indicative of a purpose to protect the employment of those employees to whom the Agreement applies – immediate context therefore suggests that clause 39.2 was likewise intended to establish a meaningful protection pertaining to the security of employment of the employees covered by the Agreement – three exceptions listed, the first two in specific terms ‘should any major operating unit cease production, or a reduction in the number of operating shifts result in reduced output’ and the third in general terms ‘any other significant change’ – no real dispute between the parties about the meaning of these first two exceptions; it was the third generally expressed exception which was the source of the controversy – the third exception, nor the other two exceptions, lead directly to a right to retrench, but merely to a review of manning numbers by the ‘parties to the agreement’ – a decision to retrench personnel in the maintenance section could not itself be an ‘other significant change’ for the purpose of clause 39.2 – Full Bench considered the exception for any ‘other significant change’ in clause 39.2 must be read as referring to a change of the same character as the first two specifically-identified exceptions – that is, a change external to the maintenance and stores sections which might have consequences for the amount of work and the number of positions in those sections – Full Bench rejected appellant’s submission that the change was to be characterised as one to outsource work which would then lead to the review of manning levels contemplated by clause 39.2 – submission did not accord with the facts – decision to outsource was inextricably linked to the reduction of three positions and the retrenchment of two employees – to treat the appellant’s proposal as falling within the third exception in clause 39.2 would be tantamount to saying that clause 39.2 prohibited retrenchments from occurring during the term of the Agreement except where the appellant decided that retrenchments should occur – Full Bench considered the decision at first instance was correct in its interpretation of clause 39.2 and its application to the facts of the case – permission to appeal is granted – appeal dismissed. Appeal by Paper Australia P/L t/a Australian Paper against decision of Ryan C of 30 December 2016 [[2016] FWC 9050] Re: Australian Manufacturing Workers’ Union
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