The Australian Workers’ UnionvAlcoa World Alumina Australia Limited

[2012] FWA 10546

FAIR WORK AUSTRALIA

INTERIM DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Workers’ Union
v
Alcoa World Alumina Australia Limited
(C2012/2530)

Aluminium industry
COMMISSIONER WILLIAMS	PERTH, 14 DECEMBER 2012

The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011.

Background

[1] The hearing of this matter had originally been listed for 3 and 4 December 2012.

[2] On 23 November 2012 an urgent conference was convened at the request of the parties regarding this dispute and the practical consequences for two employees of the respondent.

[3] Following the conference a recommendation was issued by consent of the parties which in part said that Fair Work Australia would issue an in principle decision by 6 December 2012, with detailed reasons to be issued at a later date.

[4] Subsequently the hearing was relisted to later dates at the request of the applicant and with the consent of the respondent.

[5] The hearing of this matter concluded on Thursday, 13 December 2012.

[6] Given this background and notwithstanding 6 December 2012 has passed it is appropriate that an in principle decision be promptly issued for this matter and I will now do so.

Decision

[7] The dispute was characterised by the applicant as three questions to be determined by Fair Work Australia:

1. Under Clause 22(c) of the Agreement, are employees who elect to attend a medical practitioner of their choosing required to return:

a. pro-forma medical examination form, or

b. acceptable medical form completed by their practitioner.

2. Can the employer alter the pro-forma medical examination form referred to in Clause 22(c) during the term of the Agreement?

3. Does the Agreement make provision for the employer to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c)?

[8] My decision is that the answers to these questions are:

1. Under Clause 22(c) of The Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011 (the Agreement) employees who elect to attend a registered medical practitioner of their choosing are required to return the pro-forma medical examination form they obtained from the employer, which has been completed by their medical practitioner, to the Alcoa Medical Centre.

2. The employer can alter the pro-forma medical examination form.

3. The Agreement does not make provision for the employer to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c).

[9] In due course detailed reasons for this decision will be issued to the parties.

COMMISSIONER

Appearances:

T Hammond of Counsel for the applicant.

W Milward of Heelan & Co Industrial Relations and Management for the respondent.

Hearing details:

2012.

Perth:

December 12, 13.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) took the employer, Alcoa World Alumina Australia Limited, to Fair Work Australia over the interpretation of Clause 22(c) of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2011. The AWU sought clarification on whether employees who chose to attend a medical practitioner of their choosing were required to return a pro-forma medical examination form or an acceptable medical form completed by their practitioner. They also questioned whether the employer could alter the pro-forma medical examination form and if the Agreement allowed for employees to sign medical consent forms for Mobile Equipment Medicals under Clause 22(c). The matter was heard in Perth, and the Commissioner issued an interim decision.

The legal issues before the court were the interpretation of Clause 22(c) of the Agreement. The AWU argued that employees should return the pro-forma medical examination form obtained from the employer and completed by their medical practitioner to the Alcoa Medical Centre. They also contended that the employer could not alter the form during the term of the Agreement and that the Agreement did not make provision for the employer to require employees to sign medical consent forms for Mobile Equipment Medicals under Clause 22(c). Alcoa World Alumina Australia Limited, on the other hand, may have argued for a different interpretation of the Clause.

The Commissioner concluded that employees who elected to attend a registered medical practitioner of their choosing were required to return the pro-forma medical examination form obtained from the employer, which had been completed by their medical practitioner, to the Alcoa Medical Centre. The employer could alter the pro-forma medical examination form. However, the Agreement did not make provision for the employer to require employees to sign medical consent forms for the purpose of Mobile Equipment Medicals under Clause 22(c). The Commissioner based his decision on the plain meaning of the Clause and the context in which it was used. The Commissioner noted that the Agreement was a contract between the parties and that the interpretation of its terms should be guided by the ordinary principles of contract law.

This decision provides clarity on the interpretation of Clause 22(c) of the Agreement. The Commissioner's decision will help to ensure that the terms of the Agreement are properly understood and enforced by both parties. The final orders of the court will be issued in due course.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established