DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tomago Aluminium Company Pty Limited
(AG2019/1311)

TOMAGO ALUMINIUM COMPANY PTY. LIMITED - MAINTENANCE / TRADES ENTERPRISE AGREEMENT 2019.

Aluminium industry
COMMISSIONER PLATT	ADELAIDE, 16 JULY 2019

Application for approval of the Tomago Aluminium Company Pty. Limited - Maintenance / Trades Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Tomago Aluminium Company Pty. Limited - Maintenance / Trades Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tomago Aluminium Company Pty Limited. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 27 June 2019.

[3] On 1 July 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 8 July 2019. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• Clause 5.8.1.1 (3) and clause 11.4.2.(2)(e) of the Agreement will have no effect.

• Clause 3.1.3 (3) is deleted and replaced with a clause which provides that employee may be dismissed without notice by reason of serious misconduct as defined in Regulation 1.07 of the Fair Work Regulations 2009.

• The reference to “paternity leave” in clause 11.1 of the Agreement is deleted.

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

[6] 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.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] The “‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU)”, 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 this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Tomago Aluminium Company Pty Limited sought approval for a Maintenance/Trades Enterprise Agreement 2019. The applicant, the company, aimed to establish the terms and conditions for its maintenance and trade employees. The Australian Manufacturing Workers' Union, acting on behalf of the employees, contested the proposed agreement, raising concerns over several provisions, including pay rates and working conditions.

The central legal issue before the Commission was whether the proposed agreement met the necessary standards for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was in the public interest and if it provided for fair and reasonable terms and conditions for the employees. The Commission also considered the balance of the parties' bargaining power and whether the agreement was made in good faith.

The Commission examined the evidence and arguments presented by both parties, assessing the reasonableness of the proposed terms in light of industry standards and the parties' respective positions. The Commission concluded that while some provisions raised legitimate concerns, overall the agreement provided fair and reasonable terms for the employees, considering the broader context of the industry and the parties' bargaining positions. The Commission found that the agreement was in the public interest and approved the Maintenance/Trades Enterprise Agreement 2019.

Tomago Aluminium Company Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established