Orica Australia Pty Ltd

[2021] FWCA 1668

[2021] FWCA 1668

FAIR WORK COMMISSION

DECISION

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

Orica Australia Pty Ltd
(AG2021/3976)

ORICA AUSTRALIA PTY LTD BOGGABRI COAL ENTERPRISE AGREEMENT 2021

Mining industry
COMMISSIONER BOOTH	BRISBANE, 31 MARCH 2021

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

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Orica Australia Pty Ltd (the Applicant) for approval of the Orica Australia Pty Ltd Boggabri Coal Enterprise Agreement 2021 (the Agreement). The Agreement is a single enterprise agreement.

[2] Mr Jeffrey Drayton, District Vice President of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), filed a Form F18 in this matter, advising that the CFMMEU supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicants on 12 March 2021, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed submissions and undertakings addressing the concerns raised on 18 March 2021. The CFMMEU was provided with copies of the response and proposed undertakings.

[4] The matter was listed for eHearing on 29 March 2021. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 23(ii)(a) – Personal/Carer’s Leave

•  Clause 22 – Public Holidays

•  Clause 25(d) – Notice of Termination

[7] However, noting the NES precedence undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement lodged contained a cross referencing error at clause 19.1(iii). The Applicant filed an amended version of the Agreement correcting the cross-referencing error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[9] Subject to the matters raised at paragraphs [2]-[8], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[10] In accordance with s.201(2), I note that the Agreement covers the CFMMEU.

[11] The Agreement is approved and, in accordance with s.54 of the Act and clause 5 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 March 2024.

COMMISSIONER

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<AE510896  PR728142>

Attachment A.