Orica Australia Pty Ltd

[2022] FWCA 2817

[2022] FWCA 2817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orica Australia Pty Ltd

(AG2022/3166)

ORICA AUSTRALIA PTY LTD KOORAGANG ISLAND ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER P RYAN	SYDNEY, 18 AUGUST 2022

Application for approval of the Orica Australia Pty Ltd Kooragang Island Enterprise Agreement 2022

1. Orica Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Orica Australia Pty Ltd Kooragang Island Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights

1. The Notice of Employee Representational Rights (NERR) was issued on 10 November 2021 and described the proposed coverage of the proposed agreement as “employees that perform roles of Ammonia and Nitrates Process Technician, Despatch Technician, Maintenance Technician, Triella Technician and Catalyst Technician.”

1. The Agreement included within its classification structure the position of Sites Services Technicians. The role of Site Services Technicians was not included in the proposed coverage. My chambers raised this issue with the Employer with reference to the decision of the Full Bench in Australian Manufacturing Workers’ Union v Broadspectrum (Australia) Pty Ltd[1] and invited the Employer to make any submissions in response.

1. In response, the Employer submitted that the proposed coverage of the Agreement was expanded to include Site Services Technicians on 16 June 2022 following a meeting with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and two of the three Site Service Technicians employed by the Employer, noting the third employee was unable to attend the meeting.

1. The Employer accepts the expansion of the coverage of the proposed agreement triggered a new notification time in relation to the three employees falling within the scope of the expanded coverage,[2] and that it erred in failing to issue a NERR to them.

1. The Employer submitted that the failure to issue the NERR to the Site Services Technicians was a minor procedural or technical error.[3] In support of this submission, the Employer submitted that at all times the three Site Services Technicians were represented by the AMWU, that the AMWU had participated in the bargaining process since it commenced in November 2021, and that in these circumstances the employees concerned were not disadvantaged by the error.

1. I am satisfied having regard to the Applicant’s submissions, the materials filed, and the decision of the Full Bench in Huntsman that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the three employees were not likely to have been disadvantaged by the error.

1. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Section 190 Undertakings

1. The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

National Employment Standards (NES)

1. I observe that clauses 25.2.1 and 25.4.1 of the Agreement may be inconsistent with the NES. However, noting clause 5 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Model Consultation Term

1. The Agreement does not contain a consultation term, as required by s.205(1) of the Act. 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.

Section 183 Bargaining representative

1. The AMWU, the Australian Workers’ Union (AWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2) of the Act, I note that the Agreement covers the AMWU, AWU, and the CEPU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 August 2022. The nominal expiry date of the Agreement is 4 July 2026.

COMMISSIONER

[1] [2018] FWCFB 6556 (Broadspectrum)

[2] Appeal by Uniline Australia Limited [2016] FWCFB 4969 at [113]; Broadspectrum at [23]-[26].

[3] Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 (Huntsman).

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