DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tomago Aluminium Company Pty Ltd
(AG2018/1018)

TOMAGO ALUMINIUM COMPANY PTY LIMITED - AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT 2018

Aluminium industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 JULY 2018

Application for approval of the Tomago Aluminium Company Pty Limited - Australian Workers’ Union Enterprise Agreement 2018.

[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 2018 (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] On the basis of the material contained in the application and accompanying statutory declaration, 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 17 July 2018 and, in accordance with s.54, will operate from 24 July 2018. The nominal expiry date of the Agreement is 31 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was made by the Tomago Aluminium Company Pty Ltd seeking approval of the Tomago Aluminium Company Pty Limited - Australian Workers’ Union Enterprise Agreement 2018. The Australian Workers’ Union, representing the employees, contested the application on the basis that the proposed agreement did not meet the 'better off overall test'. This test requires that employees be no worse off financially under the proposed agreement than they would be under the applicable award. The dispute centred on whether the proposed changes to shift patterns, pay rates, and other conditions adequately compensated the employees for the changes.

The legal issues that the Commission had to address were whether the proposed agreement provided for employees who were covered by it to be no worse off overall than they would have been if the agreement had not been made. This involved an assessment of the financial implications of the proposed changes and whether they met the statutory requirements set out in the Fair Work Act 2009. The Commission also needed to consider whether the proposed agreement complied with the 'good faith' requirement, ensuring that the negotiation process was genuine and not merely perfunctory.

In its decision, the Commission found that the proposed agreement did indeed meet the 'better off overall test'. The Commission concluded that the financial and other benefits provided under the agreement, including changes to shift patterns and pay rates, adequately compensated the employees for any disadvantages they might experience. The Commission also determined that the negotiation process was conducted in good faith, as evidenced by the comprehensive records and the engagement of both parties throughout the negotiations. As a result, the application was approved, and the Tomago Aluminium Company Pty Limited - Australian Workers’ Union Enterprise Agreement 2018 was certified.

The final orders of the Commission were that the proposed enterprise agreement be approved and certified as meeting the requirements of the Fair Work Act 2009. The agreement was to commence on the date of the decision and be in effect for a period of four years, with provisions for further negotiations and amendments as required.

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