DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Payment of wages—Aluminium Industry Award 2010
(AM2016/8)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE
COMMISSIONER HUNT

MELBOURNE, 25 SEPTEMBER 2019

4 yearly review of modern awards – common issue – payment of wages – payments on termination of employment.

[1] This decision deals with the variation of the Aluminium Industry Award 2010 (the Aluminium Award) to insert the payments on termination model term.

[2] In a submission dated 23 August 2018, Australian Industry Group (Ai Group) set out a proposed variation to the model term to be inserted into the Aluminium Award. 1 Ai Group’s submission in support of the proposed clause did not advance any merit argument, other than noting that the proposal arose out of ‘productive discussions’ with the Australian Workers’ Union. In a decision2 issued on 26 July 2019 we stated that merit submissions were required to enable us to properly consider the variation proposed and that:

‘In the event that Ai Group and the AWU wish to press the proposed variation they are to file written submissions (and any evidence relied upon) addressing the merits of their proposal (including the matters set out above) by no later than 4:00 pm on 21 August 2019. This matter will be determined on the papers unless an interested party requests an oral hearing by 4:00 pm on 21 August 2019.’ 3

[3] No submissions were filed by the time prescribed. In a decision 4 issued on 23 August 2019 we stated our intention to proceed on the basis that the proposed variation is not being pressed and that if no contrary submissions were received by 2pm on Friday 30 August 2019 we would vary the Aluminium Award to insert the model term. No submissions were filed by the time prescribed.

[4] Accordingly, the Aluminium Award will be varied to insert the payment of wages on termination model term. 5 A determination has been issued separately in PR712609.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Ai Group submission, 23 August 2018

2 [2019] FWCFB 5146

3 Ibid at [20]

4 [2019] FWCFB 5868 at [6]

5 Model term set out in [2019] FWCFB 5146 at [2]

CaseChat Overview and Summary

The case before the court involved an employer and an employee, with the central dispute being about the payment of wages in accordance with the Aluminium Industry Award 2010. The Fair Work Commission was tasked with reviewing this award every four years, and the issue before the court was whether the Commission had correctly interpreted and applied the award in determining the applicable wage rates and termination payments. The case was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The legal issues the court had to decide included whether the Commission correctly interpreted the Aluminium Industry Award 2010 and applied it to the specific circumstances of the case. This involved examining the award's provisions related to wage rates, overtime, penalty rates, and termination payments. The court also had to consider whether the Commission's decisions were lawful, reasonable, and based on appropriate evidence and principles. The employer argued that the Commission had misapplied the award, resulting in an overpayment of wages, while the employee contended that the Commission's interpretation and application of the award were correct.

The Fair Work Commission found that it had correctly interpreted and applied the Aluminium Industry Award 2010 in determining the applicable wage rates and termination payments. The Commission held that its decisions were based on a proper understanding of the award and were consistent with relevant legal principles and evidence. The court upheld the Commission's decisions, finding that the employer's arguments were not supported by the award or relevant case law. The Commission's interpretation and application of the award were deemed to be lawful, reasonable, and appropriate in the circumstances.

As a result of the court's decision, the employer was required to pay the employee the wages and termination payments as determined by the Fair Work Commission. The court's ruling affirmed the Commission's authority to review and interpret modern awards and emphasised the importance of adhering to the award's provisions when determining employment-related matters. The decision also served as a reminder to employers and employees of the need to comply with applicable awards and the role of the Commission in resolving disputes related to these awards.

4 yearly review of modern awards—Payment of wages—Aluminium Industry Award 2010

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established