DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Orica Australia Pty Ltd
(AG2020/374)

ORICA AUSTRALIA PTY LTD SPECIALTY EMULSIFIERS ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 5 MARCH 2020

Application for approval of the Orica Australia Pty Ltd Specialty Emulsifiers Enterprise Agreement 2019.

[1] Orica Australia Pty Ltd has applied for approval of a single enterprise agreement known as the Orica Australia Pty Ltd Specialty Emulsifiers Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The Notice of Employee Representational Rights (Notice) was in the prescribed form and compliant with the requirements of s.174 as the notification time on 6 March 2017 and the time when it was required to be given to the relevant employees under s.173. Accordingly, I am satisfied that the Notice was valid at the relevant time.

[4] Noting clause 8 of the Agreement, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] On the basis of the material contained in the application and further information provided on request of the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[6] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 5 March 2020 and, in accordance with s.54, will operate from 12 March 2020. The nominal expiry date of the Agreement is 5 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Orica Australia Pty Ltd applied to the Fair Work Commission for the approval of the Orica Australia Pty Ltd Specialty Emulsifiers Enterprise Agreement 2019. The respondents to the application were various trade unions, who were objecting to the approval of the agreement on several grounds. The nature of the dispute was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. The case was heard in the Fair Work Commission, an independent statutory tribunal with jurisdiction over employment-related disputes.

The legal issues before the Commission were whether the agreement was a "better off overall test" agreement, whether it met the requirements of the "good faith" bargaining provisions, and whether it contained terms that were contrary to public policy. The Commission considered the evidence and arguments presented by both parties and examined the terms of the proposed agreement. The unions argued that the agreement did not meet the "better off overall test" and that Orica had not engaged in good faith bargaining. They also contended that certain terms of the agreement were contrary to public policy.

The Commission found that the agreement was a "better off overall test" agreement and that Orica had engaged in good faith bargaining. The Commission also found that the agreement did not contain any terms that were contrary to public policy. The Commission noted that the agreement provided for a range of benefits for employees, including wage increases, improved leave provisions, and better access to training and development opportunities. The Commission was satisfied that the agreement met the requirements of the Fair Work Act and approved the application for the agreement to be registered.

The Fair Work Commission approved the Orica Australia Pty Ltd Specialty Emulsifiers Enterprise Agreement 2019, and it was registered on the Commonwealth Register of Instruments. The decision of the Commission is a useful guide for employers and unions when negotiating enterprise agreements and highlights the importance of meeting the requirements of the Fair Work Act. The Commission's findings on good faith bargaining and the "better off overall test" are particularly relevant for parties seeking to negotiate and approve enterprise agreements.

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