Orica Australia Pty Ltd

[2021] FWCA 681

[2021] FWCA 681

FAIR WORK COMMISSION

DECISION

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

Orica Australia Pty Ltd
(AG2020/4040)

ORICA AUSTRALIA PTY LTD YARWUN SITE ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 10 FEBRUARY 2021

Application for approval of the Orica Australia Pty Ltd Yarwun Site Enterprise Agreement 2020.

[1] Orica Australia Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Orica Australia Pty Ltd Yarwun Site Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I note that the application of clause 23.1 of the Agreement relating to annual leave may result in an inconsistency with the National Employment Standards (NES) on the basis that the entitlement to annual leave is expressed in hours, rather than in weeks as provided in s. 87(4) of the Act.

[3] I also note that clause 5.4 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Further, I note that by virtue of s.55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s.56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s.55.

[4] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[5] The Australian Workers’ Union, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) of the Act, and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

[6] The Agreement is approved in accordance with s.54 of the Act and will operate from 17 February 2021. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

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