Alcoa of Australia Limited T/A Alcoa of Australia

[2023] FWCA 1042

[2023] FWCA 1042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Alcoa of Australia Limited T/A Alcoa of Australia

(AG2023/704)

ALCOA OF AUSTRALIA, WA OPERATIONS (MECHANICAL TRADES) AGREEMENT, 2023

Aluminium industry
COMMISSIONER PLATT	ADELAIDE, 11 APRIL 2023

Application for approval of the ALCOA OF AUSTRALIA, WA OPERATIONS (MECHANICAL TRADES) AGREEMENT, 2023

1. An application has been made for approval of an enterprise agreement known as the ALCOA OF AUSTRALIA, WA OPERATIONS (MECHANICAL TRADES) AGREEMENT, 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Alcoa of Australia Limited T/A Alcoa of Australia (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 27 March 2023.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 16(a)(ix) of the Agreement provides that the Company may deduct from “final payments due to the employee” on termination an amount equal to the annual leave taken in advance to which an entitlement has not been accrued. This could be inconsistent with s.324 of the Act.

· Clauses 16(g)-(h) of the Agreement provides that the Company and majority of employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s.115(3) FW Act which provides that such substitution may only occur by agreement between the employer and employee.

1. Clause 5(e)of the Agreement acts as an effective NES precedence clause.  As a result of the NES precedence clause, the above provisions will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 29 March 2023. The undertaking deals with the following topics:

·   Annual Leave loading will accrue progressively. On termination, payment for annual leave provided in advance will only be deducted from the employees pay if the employee has authorised the deduction in writing.

·   The individual flexibility provision in the Agreement has been varied to match the model term.

·   First Year Adult Apprentices will be paid at the Award rate of pay.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 10 April 2027.

COMMISSIONER

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