Orica Australia Pty Ltd

[2024] FWCA 2729

[2024] FWCA 2729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orica Australia Pty Ltd

(AG2024/2598)

ORICA AUSTRALIA PTY LTD VICTORIA QUARRY AND CONSTRUCTION SERVICES ENTERPRISE AGREEMENT 2024

Quarrying industry
COMMISSIONER FOX	MELBOURNE, 5 AUGUST 2024

Application for approval of the Orica Australia Pty Ltd Victoria Quarry and Construction Services Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Orica Australia Pty Ltd Victoria Quarry and Construction Services Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Orica Australia Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clause is likely to be inconsistent with the National Employment Standards (NES):

• Redundancy: Clause 42.1(a) provides that the ‘Employer will pay Severance Pay where an Employee’s employment is terminated by the Employer in circumstances where the Employer acknowledges that the Employee’s position has been made Redundant due to operational requirements’ (emphasis added). However, clause 42.1(b)(v) then states that this will not apply to employees who are offered acceptable alternative employment by the Employer. This is likely to be inconsistent with the requirements of s.120 of the Act.

1. However, noting clause 4.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Notice of Employee Representational Rights issued to employees on Monday, 12 February 2024 titled the Agreement as the ‘ORICA VICTORIA QUARRY AND CONSTRUCTION SERVICES ENTERPRISE AGREEMENT 2020’ (emphasis added) whilst the Agreement is titled ‘Orica Australia Pty Ltd Victoria Quarry and Construction Services Enterprise Agreement 2024’ (emphasis added). I am satisfied having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] that this constitutes a minor technical or procedural error for the purposes of s 188(5)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. Accordingly, notwithstanding the matter identified in paragraph [5] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2).

1. The Australian Workers’ Union being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 12 August 2024. The nominal expiry date of the Agreement is 8 May 2028.

COMMISSIONER

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE525552  PR777500>