Tomago Aluminium Company Pty Ltd

[2023] FWCA 2162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tomago Aluminium Company Pty Ltd

(AG2023/2074)

TOMAGO ALUMINIUM COMPANY PTY. LIMITED - MAINTENANCE / TRADES ENTERPRISE AGREEMENT 2023

Aluminium industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 13 JULY 2023

Application for approval of the Tomago Aluminium Company Pty. Limited - Maintenance / Trades Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Tomago Aluminium Company Pty. Limited - Maintenance / Trades Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Tomago Aluminium Company Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Coverage of employee organisations

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

Compliance with legislative instruments

There were issues raised by the Commission (on behalf of the CEPU and the AMWU) with the Employer in relation to clauses 10.6.2 and 10.7(1)(d) of the Agreement in respect of their compliance with the NES and the Long Service Leave Act 1955 (NSW). Having regard to the submissions of the Employer provided on 12 July 2023, I am satisfied that these clauses do not give rise to any concerns in relation to the approval of the Agreement (especially noting Clause 1.6 of the Agreement).

Conclusion

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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 July 2023. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tomago Aluminium Company Pty Ltd recently appeared before the Fair Work Commission to seek approval of a new enterprise agreement. The agreement in question, the Maintenance / Trades Enterprise Agreement 2023, is intended to regulate the employment conditions for the company's maintenance and trades personnel. The dispute centred on whether the proposed terms and conditions of the agreement complied with the relevant provisions of the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement provided for a safety net of minimum terms and conditions, whether it contained provisions that were procedurally and substantively unfair, and whether the agreement was genuinely negotiated. The Commission needed to consider the extent to which the agreement met the statutory requirements for approval, including compliance with the "better off overall test" which ensures that employees are not worse off financially by being under the new agreement.

In reaching its decision, the Commission carefully examined the terms of the proposed agreement and the process by which it was negotiated. The Commission found that the agreement met the statutory safety net requirements and contained provisions that were procedurally and substantively fair. The company had demonstrated that the agreement was genuinely negotiated with the employees' representatives. The Commission was satisfied that the agreement would result in employees being better off overall, thereby meeting the statutory criteria for approval.

As a result, the Fair Work Commission approved the Maintenance / Trades Enterprise Agreement 2023, enabling it to come into effect on the date specified in the agreement. The approval signifies that the agreement will now govern the employment terms and conditions of the relevant employees at Tomago Aluminium Company Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established