Capral Limited T/A Capral Aluminium

[2024] FWCA 4616

[2024] FWCA 4616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Capral Limited T/A Capral Aluminium

(AG2024/4111)

CAPRAL CAMPBELLFIELD ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER FOX	MELBOURNE, 24 DECEMBER 2024

Application for approval of the Capral Campbellfield Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the Capral Campbellfield Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Capral Limited T/A Capral Aluminium (the Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

• Termination: Clause 17.5 of the Agreement states the period of notice does not apply in the case of dismissal for malingering, inefficiency, neglect of duty or misconduct. This is inconsistent with s.123 of the Act which provides that the division does not apply to serious misconduct.

• Personal Leave Notice and Evidence Requirement: Clause 37.8 of the Agreement provides that employees must notify by telephone their Team Leader or Manager of their absence, as far as practicable, at least one hour prior to the commencement of their shift. This clause further provides that text, email, or electronic media messages are not an acceptable form of notification. This is more restrictive than s.107(2) of the Act.

• Compassionate Leave: Clause 41 of the Agreement provides for compassionate leave. However, it is silent is relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This is inconsistent with s.104(1)(c) of the Act.

• Annual Leave: Clause 43.3 of the Agreement provides that leave can be refused for operational reasons. This appears to be inconsistent with s. 88 of the Act as employers must not unreasonably refuse to agree to a request by employees to take paid annual leave.

• Redundancy: Clause 55.6 of the Agreement provides where Capral can arrange comparable alternative employment within either Capral or with another employer, no payment pursuant to this agreement shall apply. This clause does not appear to be subject to s.120 of the Act.

1. The Australian Workers’ Union (AWU) being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 31 December 2024. The nominal expiry date of the Agreement is 31 July 2027.

COMMISSIONER

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ANNEXURE A