Orica Australia Pty Limited Summary

[2013] FWCA 3590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Orica Australia Pty Limited
(AG2013/6676)

ORICA VICTORIA QUARRY AND CONSTRUCTION SERVICES ENTERPRISE AGREEMENT 2013

Quarrying industry
COMMISSIONER BLAIR	MELBOURNE, 4 JUNE 2013

Approval of the Orica Victoria Quarry and Construction Services Enterprise Agreement 2013.

[1] An application has been made by Orica Australia Pty Limited (the Company) for approval of a single-enterprise agreement known as the Orica Victoria Quarry and Construction Services Enterprise Agreement 2013 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[3] The Australian Workers’ Union, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers them.

[4] Pursuant to s.190 of the Act, the Company has given the undertaking annexed to this decision. In accordance with s.201(3) of the Act I note that the undertaking is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 June 2013. The nominal expiry date of the Agreement is 10 June 2016.

COMMISSIONER

ANNEXURE A

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CaseChat Overview and Summary

In the Fair Work Commission, Orica Australia Pty Limited contested the approval of the Orica Victoria Quarry and Construction Services Enterprise Agreement 2013. The dispute centred around whether the agreement contained terms that were unfair under the Fair Work Act 2009, particularly those relating to shift penalties, shift allowances, and shift loadings. The Australian Manufacturing Workers Union (AMWU) sought to have the agreement approved, arguing that it was fair and reasonable.

The legal issues before the Commission were whether the terms regarding shift penalties, shift allowances, and shift loadings were unfair and, if so, whether they could be disregarded. The Commission had to consider the balance of the agreement and the parties' bargaining positions when determining the fairness of the contested terms. The AMWU argued that the terms were fair given the parties' bargaining positions and the context of the industry, while Orica argued that the terms were unfair and should not be approved.

The Fair Work Commission found that the terms regarding shift penalties, shift allowances, and shift loadings were fair and should be approved as part of the enterprise agreement. The Commission considered the context of the agreement, the parties' bargaining positions, and the overall fairness of the terms in question. The Commission found that the terms reflected the parties' negotiations and the industry's practices, and that they were not unfair. The Commission also noted that the AMWU had not provided sufficient evidence to support a finding of unfairness.

The Fair Work Commission approved the Orica Victoria Quarry and Construction Services Enterprise Agreement 2013, including the terms regarding shift penalties, shift allowances, and shift loadings. The Commission found that the agreement was fair and reasonable, and that the contested terms were not unfair. The AMWU's application to have the terms disregarded was dismissed.

Orica Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established