Motherhood statements including commitments to do, or not do, something in the future in an enterprise agreement can come back to bite, or at least frighten, as a recent Federal Circuit Court judgment illustrates. The employer was taken to court by the union on the grounds that it had made a commitment “to retain the existing engineering and maintenance functions of employees”. On the surface, and in the context of negotiations, such a commitment seems harmless enough. It is a statement of intent, no more, no less. Such ‘commitment’ clauses are commonplace in enterprise agreements.
But a problem arose when the employer reduced the number of employees. The union argued that the words of the clause precluded the employer from doing this, because to do so, would not ‘retain’ the existing functions.
Unfortunately for the union the judge disagreed, citing the fact that this was not a commitment “setting the current work practices and functions …. in amber”. The judge drew a clear distinction between a commitment to retain the functions and any suggestion that that translated to maintaining the numbers and/or types of employees in the particular division of the business.
In describing the term “Job Security” the judge said:
“”‘Job Security’ cannot be defined as the maintenance of existing numbers and tasks. ‘Job Security’ encompasses the continued employment of an engineering workforce. The clause itself seeks to address that by requiring a commitment from the employees to cooperate on issues in improving productivity and efficiency and overall profitability. It is only in that way that real job security, meaning the continued employment of engineers can be maintained.”
While such an outcome is welcome by the employer concerned, the trouble started with the commitment clause in the first place. The cost, inconvenience and uncertainty the challenge caused is pause for thought about making motherhood statements when the risk is, the only value they will ever surrender is a vehicle with which an employer can be attacked.