Orica Australia Pty Ltd

[2014] FWC 2394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Orica Australia Pty Ltd
(AG2014/448)

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 APRIL 2014

Application for approval of the Orica Australia Pty Ltd South East Region Enterprise Agreement 2014 - refusal.

[1] Orica Australia Pty Ltd (the Applicant) lodged an application on 3 March 2014, pursuant to s.185 of the Fair Work Act 2009 (the Act) seeking approval of the Fair Work Commission (the Commission) for an Enterprise Agreement entitled Orica Australia Pty Ltd South East Region Enterprise Agreement 2014 (the Agreement).

[2] The Agreement is proposed to operate for four years from the date of approval.

[3] A number of issues have been the subject of correspondence between my chambers and the Applicant.

[4] Attached to the application was a Notice of Employee Representational Rights sent to employees on 14 November 2012.

[5] Section 174 of the Act, in particular subsection (1A), provides that the Notice must contain the content prescribed by the Fair Work Regulations 2009 (the Regulations), not contain any other content, and be in the form prescribed by the Regulations. Schedule 2.1 of the Regulations contains the Notice template. Any notice which modifies either the content or the form of the Notice template goes to invalidity. The Commission cannot ratify any such agreement.

[6] A Full Bench of the Commission in Peabody Moorvale Pty Ltd v CFMEU[2014] FWCFB 2042 has recently confirmed this principle.

[7] Accordingly, I decline to approve the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Orica Australia Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission. The respondents, including various unions and employees, opposed the approval on the basis that the agreement did not meet the requirements of the Fair Work Act 2009. The Fair Work Commission was required to decide whether the agreement was appropriate for approval under the Act.

The key legal issue before the Commission was whether the enterprise agreement provided fair and adequate protections for employees. The respondents argued that the agreement did not adequately protect employees' wages, entitlements, and conditions of employment. They claimed that the agreement failed to provide for adequate consultation and negotiation processes, and that it contained provisions that were inconsistent with the Act. Orica, on the other hand, argued that the agreement was fair and appropriate, and that it provided for adequate protections for employees.

The Fair Work Commission found that the agreement did not meet the requirements of the Act. The Commission noted that the agreement did not provide for adequate consultation and negotiation processes, and that it contained provisions that were inconsistent with the Act. The Commission also found that the agreement did not adequately protect employees' wages, entitlements, and conditions of employment. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the enterprise agreement. The Commission found that the agreement did not provide fair and adequate protections for employees, and that it was inconsistent with the requirements of the Fair Work Act 2009. The Commission's decision was final and binding, and could not be appealed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established