Orica Australia Pty Ltd

[2022] FWCA 28

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orica Australia Pty Ltd

(AG2021/8780)

Orica Australia Pty Ltd Helidon Enterprise Agreement 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 JANUARY 2022

Application for approval of the Orica Australia Pty Ltd Helidon Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Orica Australia Pty Ltd Helidon Enterprise Agreement 2021 (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 Ltd. The Agreement is a single enterprise agreement.

The Employer has 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.

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.

I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 22.10 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Workers’ Union, being a bargaining representative for the Agreement, 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 organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 January 2022. The nominal expiry date of the Agreement is 5 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Orica Australia Pty Ltd sought approval for the Helidon Enterprise Agreement 2021, which was intended to govern the terms and conditions of employment for employees at the Helidon site. The application was made to the Fair Work Commission, which was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The legal issues centred on whether the agreement provided for fair and reasonable terms and conditions, whether it complied with the procedural requirements for approval, and whether the agreement was genuinely negotiated between the employer and the employees.

The Commission examined the agreement's provisions and the process by which it was negotiated. It considered whether the agreement provided for adequate protections for employees, including minimum rates of pay, leave entitlements, and dispute resolution mechanisms. The Commission also assessed whether the agreement was genuinely negotiated, taking into account the parties' conduct, the nature of the negotiations, and the extent to which the employees had an opportunity to participate in the process. After considering the evidence and arguments presented, the Commission found that the agreement met the statutory requirements for approval.

The Fair Work Commission approved the Orica Australia Pty Ltd Helidon Enterprise Agreement 2021, finding that it provided for fair and reasonable terms and conditions of employment. The Commission was satisfied that the agreement was genuinely negotiated and that it complied with the procedural requirements for approval. The Commission noted that the agreement provided for adequate protections for employees, including minimum rates of pay, leave entitlements, and dispute resolution mechanisms. The Commission also found that the agreement was consistent with the principles of the Fair Work Act 2009, and that it did not undermine the rights of employees or the broader industrial relations system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established