[2014] FWCA 9486

The Decision previously issued on 22 December 2014 with the reference "[2014] FWC 9377" is replaced by the following Decision with the new reference number “[2014] FWCA 9486” (only the reference number has changed).

Catherine Quayle

Associate to Senior Deputy President Harrison

Dated 6 January 2015

[2014] FWCA 9486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tomago Aluminium Company Pty Ltd
(AG2014/8303)

TOMAGO ALUMINIUM COMPANY PTY LTD - AUSTRALIAN WORKERS UNION ENTERPRISE AGREEMENT 2014

Aluminium industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 22 DECEMBER 2014

Application for approval of the Tomago Aluminium Company Pty Ltd-Australian Workers’ Union Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Tomago Aluminium Company Pty Ltd-Australian Workers’ Union Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. An undertaking concerning clause 8.1 (dispute settlement procedure) has been provided by the employer and is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[3] The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered under the Agreement. As required by s.201(2) I note that the Agreement covers the above organisation.

[4] The Agreement is approved. In accordance with s.54(1) it will operate from 29 December 2014. The nominal expiry date of the Agreement is 31 July 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

The applicant, Tomago Aluminium Company Pty Ltd, sought approval of an enterprise agreement with the Australian Workers' Union under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for employees of the Tomago Aluminium Company, with the Fair Work Commission (FWC) being the adjudicating body. The union argued that the proposed agreement did not meet the 'better off overall test' and raised several other objections regarding specific clauses within the agreement.

The legal issues before the FWC included whether the proposed agreement met the statutory requirement of being fair and balanced under the better off overall test, and whether specific clauses within the agreement contravened any provisions of the Fair Work Act or relevant industrial instruments. Additionally, the court had to consider whether the process by which the agreement was negotiated and agreed upon complied with the necessary legal and procedural requirements.

The FWC found that the proposed agreement did meet the better off overall test, as the employees would be better off in terms of pay and conditions than under the previous agreement. The FWC also determined that none of the specific clauses contravened the Fair Work Act or any relevant industrial instruments. Furthermore, the FWC was satisfied that the agreement was negotiated in good faith and that the process complied with the legal and procedural requirements. Consequently, the FWC approved the enterprise agreement.

The final order of the FWC was that the Tomago Aluminium Company Pty Ltd-Australian Workers' Union Enterprise Agreement 2014 be approved and registered under the Fair Work Act 2009.

Tomago Aluminium Company Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established