Capral Limited T/A Capral Aluminium

Case •

[2023] FWCA 2720

•

25 AUGUST 2023
[2023] FWCA 2720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Capral Limited T/A Capral Aluminium

(AG2023/2530)

CAPRAL ALUMINIUM SMITHFIELD EMPLOYEES ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries

COMMISSIONER MATHESON

SYDNEY, 25 AUGUST 2023

Application for approval of the Capral Aluminium Smithfield Employees Enterprise Agreement 2023

  1. An application has been made for approval of an enterprise agreement known as the Capral Aluminium Smithfield Employees Enterprise Agreement 2023 (Agreement). The application was made by Capral Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

  1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A indicates that the notification time for the Agreement was 13 April 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in relation to genuine agreement in force immediately prior to 6 June 2023.

  1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

  1. The Australian Workers’ Union (AWU) is a bargaining for the Agreement and filed a Form F18 in relation to the application. In its Form F18 the AWU indicated that it did not support approval of the Agreement on the basis that it does not pass the better off overall test (BOOT). Five concerns were raised in this regard, and I deal with them below. The relevant award for the purposes of the BOOT is the Manufacturing and Associated Industries and Occupations Award 2020 (Award).

Notice of termination

  1. The AWU raised a concern that clause 18.2 of the Agreement provides the Applicant with discretion as to whether payment may be made in lieu of the notice period and submitted that this is inconsistent with s.117 of the Act.

  1. In this regard clause, clause 18.2 states:

‘At Capral’s complete discretion, payment may be made in lieu of the above notice periods.’

  1. The clause sits below a table setting out the relevant notice periods, depending on an employee’s period of service, which align with the quantum of weeks’ notice set out in the National Employment Standards (NES).

  1. The Applicant submitted that it is its policy to provide payment in lieu of notice where there is a requirement to do so or by mutual agreement with the employee and that the clause is consistent with its policy. The Applicant submitted there is no detriment to an employee who has been terminated and that payment in lieu of notice would allow them to actively seek employment whilst still in receipt of wages.

  1. Section 117(2) of the Act contemplates that an employer may pay to an employee payment in lieu of notice of at least the amount the employee would have been liable to pay to the employee at their full rate of pay for the hours they would have worked had the employment continued until the end of the minimum period of notice. It is not apparent to me that clause 18.2 is intended to be applied in a manner inconsistent with this approach. Rather, it is contemplating that notice in lieu may be paid rather than requiring the employee to work through the notice period, at the Applicant’s discretion.

  1. However, even if it did give rise to some inconsistency with the NES on an alternative interpretation, noting clause 4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Shift work – afternoon shift

  1. The AWU raised a concern that clause 27.1 of the Agreement is ‘inconsistent with the Award and could lead to the applicable penalty rates for shift work not being provided’ and noted that clause 33.2(b)(i) of the Award provides that an afternoon shift finishes after 6.00pm and at or before midnight.

  1. Clause 27.1 of the Agreement provides:

‘27.1    Shift workers are persons who work the following shifts:

(a)   afternoon shift – starts no later than 6pm

(b)   night Shift – starts after 6pm’

  1. The Applicant noted that clauses 27.3 and 27.4 of the Agreement provide employee roster details for afternoon shift as follows:

  • Clause 27.3: ‘On 2 Shifts the standard hours will be 6:00am to 2:20pm (day) and 2:20pm to 10.40pm (afternoon) or any combination…’
  • Clause 27.4: ‘On 3 Shifts the standard hours will be 6:00am to 2:00pm, 2:00pm to 10:00pm and 10:00pm to 6:00am…’

  1. The Applicant submitted that rostered afternoon shifts therefore finish after 6pm and before midnight.

  1. Having considered the Agreement provisions referred to by the Applicant, I accept the Applicant’s explanation that its rostered afternoon shifts finish after 6pm and at or before midnight. However, I also note that for abundant clarity the Applicant has provided an undertaking to the effect that an afternoon shift means any shift finishing after 6.00pm and at or before midnight.

Shift work – night shift

  1. The AWU raised a concern that clause 27.1 of the Agreement is ‘inconsistent with the Award and could lead to the applicable penalty rates for shift work not being provided’ and noted that clause 33.2(b)(iii) of the Award provides that a night shift finishes after midnight and at or before 8.00am. As noted above clause 27.1(b) of the Agreement provides that night shift starts after 6pm.

  1. The Applicant again pointed to clause 37.4 of the Agreement and I accept that it that it is intended that night shift finishes after midnight and before 8am. However, I also note that for abundant clarity the Applicant has provided an undertaking to the effect that a night shift means any shift finishing after midnight and at or before 8.00am.

Overtime

  1. The AWU raised the concern that clause 28.2 of the Agreement omits to provide ‘any notice given by the employee of his or her intention to refuse to work the additional hours’ and that this is provided for in clause 32.9(c)(vi) of the Award.

  1. Clause 28.2 of the Agreement provides:

‘In determining whether the additional hours an employee is requested or required to work are ‘reasonable’, a range of factors must be considered, including (but not limited to:

(a)   any risk to the employee’s health and safety

(b)   the employee’s personal circumstances including family responsibilities

(c)   the operational requirements of the workplace or enterprise

(d)   whether any of the additional hours are on a public holiday

(e)   the employee’s hours of work in the four weeks prior to the request and

(f)    the notice (if any) given by Capral of the additional hours and by the employee of his or her intention to refuse it.’

  1. A similar provision is included in clause 39(c) of the Award.

  1. The Applicant submitted that clause 28.4(f) of the Award covers the concern raised by the AWU. While not expressed in identical terms, I do accept that the effect of clause 28.2(f) is that it requires consideration of any notice given by the employee of their intention to refuse to work the additional hours, consistent with the requirement in the Award.

Disciplinary action

  1. The AWU raised the concern that clause 39.4 of the Agreement fails to outline what steps are involved in the disciplinary action taken and there is no reference to a support period or employee representative person being present or notified of disciplinary action taken.

  1. The Applicant noted that there is no clause 39.4 in the Agreement however it is apparent that the AWU was referring to the disciplinary process in clause 49.4.

  1. The Applicant acknowledged that the Agreement does not make provision for a support person or employee representative but that it is its process that employees are to be afforded a support person for all disciplinary matters and indicated that it would be happy to address this issue in future agreements.

  1. The UWU’s concern does not give rise to a BOOT concern, noting there is no equivalent provision within the Award dealing with disciplinary action.

  1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

  1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

  1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

  1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

  1. The Australian Workers’ Union, being a bargaining representative for the Agreement, 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 1 September 2023. The nominal expiry date of the Agreement is 28 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE521266  PR765556>

ANNEXURE A

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