DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Orica Australia Pty Ltd
(AG2020/2914)

ORICA AUSTRALIA PTY LTD NSW QUARRY AND CONSTRUCTION SERVICES ENTERPRISE AGREEMENT 2018 (AGREEMENT)

Quarrying industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 OCTOBER 2020

Application for variation of the Orica Australia Pty Ltd NSW Quarry and Construction Services Enterprise Agreement 2018.

[1] An application has been made for approval of a variation to the Orica Australia Pty Ltd NSW Quarry and Construction Services Enterprise Agreement 2018 (the Agreement). The application was made by Orica Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 7 June 2019. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 1 October 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Orica Australia Pty Ltd sought a variation to the NSW Quarry and Construction Services Enterprise Agreement 2018. The application arose from a dispute between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard in the Fair Work Commission, with the Commission needing to determine whether the application met the criteria for a variation as set out in the Fair Work Act 2009. The central issue before the Commission was whether the proposed changes to the enterprise agreement were necessary to facilitate flexibility and efficiency in the workplace, which is one of the permissible grounds for variation under the Act.

The Commission considered the evidence presented by both parties, focusing on whether the proposed changes would indeed facilitate flexibility and efficiency. The company argued that the changes were essential to adapt to evolving business practices and economic conditions, while the union contended that the proposed changes would undermine existing protections and entitlements for employees. The Commission needed to balance the need for workplace adaptability against the preservation of employee rights. It examined the specific provisions of the proposed variation, assessing their impact on the workforce and the company's operational needs.

After reviewing the submissions and evidence, the Commission concluded that the proposed changes did meet the criteria for variation as they were necessary to allow for greater flexibility and efficiency in the workplace. The changes did not undermine the fundamental rights and protections of employees but rather adapted them to contemporary business practices. Consequently, the Commission approved the application for variation of the enterprise agreement, allowing the proposed changes to take effect. The decision was made in the interest of maintaining a fair and productive working environment that accommodates both the needs of the business and the rights of the employees.

Orica Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established