Orica Australia Pty Ltd

[2022] FWCA 3499

[2022] FWCA 3499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orica Australia Pty Ltd

(AG2022/3280)

ORICA KALGOORLIE RESERVE ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 10 OCTOBER 2022

Application for approval of the ORICA KALGOORLIE RESERVE ENTERPRISE AGREEMENT 2022.

1. Orica Australia Pty Ltd (the Employer) has made an application for the approval of the ORICA KALGOORLIE RESERVE ENTERPRISE AGREEMENT 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

1. Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

Correcting and amending applications and documents under section 586

1. The Australian Workers’ Union (AWU) has requested that the Commission exercise its powers pursuant to s.586 of the Act to amend clause 14.4 of the Agreement so that the clause reads:

“Orica shall have the right to dismiss any employee without notice for serious misconduct, in accordance with Reg 1.07 of the Fair Work Regulations. In such cases, the annualised salary shall be paid up to the time of the dismissal only.”

1. I am satisfied that this amendment should be allowed and that is it appropriate to do so pursuant to s.586 of the Act. I make the amendment.

1. I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

   • Clause 22.12 – Rostered Hours of Work
   • Clause 24.3 – Personal Leave
   • Clause 25.1 – Compassionate Leave

1. Noting the undertaking and submissions provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The AWU was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 October 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A