DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Orica Australia Pty Limited
(AG2018/3570)

ORICA AUSTRALIA PTY LTD KOORAGANG ISLAND ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 DECEMBER 2018

Application for approval of the Orica Australia Pty Ltd Kooragang Island Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Orica Australia Pty Ltd Kooragang Island 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 Orica Australia Pty Limited. 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] 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] I note that Clauses 25.7.9.1, 25.7.10.1, 25.7.11.1, and 25.7.12.1 are inconsistent with the National Employment Standards as it expresses an employee’s annual leave entitlement in an hourly format. Given the National Employment Standards precedence clause at Clause 5 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2018. The nominal expiry date of the Agreement is 4 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Orica Australia Pty Limited, the applicant sought approval of the Orica Australia Pty Ltd Kooragang Island Enterprise Agreement 2018. The applicant was seeking to have the agreement recognised as a protected action under the Fair Work Act 2009. The dispute arose from the negotiation and subsequent proposed terms of the enterprise agreement between the applicant and the relevant union. The court had to decide whether the proposed agreement complied with the requirements of the Act, including the provisions for protected actions, and whether it met the criteria for approval under the relevant sections of the legislation.

The central legal issues revolved around whether the proposed enterprise agreement was genuinely bargained for and whether it complied with the procedural and substantive requirements set out in the Fair Work Act. The court needed to consider whether the agreement was reached through a process of genuine negotiation and whether it adhered to the provisions for protected actions. Additionally, the court had to assess if the agreement satisfied the criteria for approval, including whether it provided for the fair treatment of employees and did not have an adverse effect on the employees' rights and entitlements.

The court found that the applicant had demonstrated that the enterprise agreement was genuinely negotiated and that the process adhered to the legislative requirements. The agreement was found to be compliant with the procedural and substantive provisions of the Fair Work Act. The court concluded that the agreement was in the best interests of the employees and did not have an adverse effect on their rights and entitlements. Therefore, the court approved the enterprise agreement, finding it to be a protected action under the Act.

The final orders of the court were that the Orica Australia Pty Ltd Kooragang Island Enterprise Agreement 2018 be approved as a protected action under section 175 of the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission, and the provisions would come into effect on the date specified in the agreement. The court's decision provided clarity on the procedural and substantive requirements for enterprise agreements and reinforced the importance of genuine negotiation in the process.

Orica Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established