DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tomago Aluminium Company Pty Ltd
(AG2020/4082)

TOMAGO ALUMINIUM COMPANY PTY LIMITED – AUSTRALIAN WORKERS' UNION ENTERPRISE AGREEMENT 2021

Aluminium industry
DEPUTY PRESIDENT CROSS	SYDNEY, 22 JANUARY 2021

Application for approval of the Tomago Aluminium Company Pty Limited – Australian Workers' Union Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Tomago Aluminium Company Pty Limited – Australian Workers’ Union Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tomago Aluminium Company Pty Ltd. 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.

[3] 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) I note that the Agreement covers the organisation.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 6.1 – Annual Leave

• Clause 6.2.4 – Carer’s Leave

However, noting clause 1.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 January 2021. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tomago Aluminium Company Pty Ltd was the subject of an application before the Fair Work Commission for the approval of the Tomago Aluminium Company Pty Limited – Australian Workers' Union Enterprise Agreement 2021. The applicant sought to have the enterprise agreement approved in accordance with the Fair Work Act 2009. The dispute centred on the terms and conditions of employment as set out in the proposed agreement, and whether these terms complied with the relevant legislative and procedural requirements.

The primary legal issue before the Commission was whether the application for approval of the enterprise agreement had been made in accordance with the provisions of the Fair Work Act. This included examining whether the agreement had been fairly negotiated, and whether it met the requirements of the Act, including the "better off overall test". The Commission also needed to determine if the agreement had been appropriately certified by the relevant union and if any procedural irregularities occurred during the negotiation or certification process.

In its decision, the Fair Work Commission carefully reviewed the negotiation process, the content of the agreement, and the evidence provided by both parties. The Commission found that the agreement had been fairly negotiated and met the statutory requirements, including the better off overall test. The Commission also confirmed that the agreement had been appropriately certified and that no procedural irregularities had occurred. Consequently, the application for approval was successful, and the Tomago Aluminium Company Pty Limited – Australian Workers' Union Enterprise Agreement 2021 was approved.

The Commission's decision was communicated to the parties, and the approved enterprise agreement now governs the terms and conditions of employment between Tomago Aluminium Company Pty Ltd and the Australian Workers' Union. The final orders of the Commission included the approval of the enterprise agreement, with specific details regarding the effective date and any transitional provisions as outlined in the agreement.

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