Orica Australia Pty Ltd

[2024] FWCA 2775

[2024] FWCA 2775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Orica Australia Pty Ltd

(AG2024/2285)

ORICA AUSTRALIA PTY LTD GUNNEDAH BASIN COAL ENTERPRISE AGREEMENT 2024

Mining industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 29 JULY 2024

Application for approval of the Orica Australia Pty Ltd Gunnedah Basin Coal Enterprise Agreement 2024

Introduction

1. Orica Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Orica Australia Pty Ltd Gunnedah Basin Coal Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights (NERR)

1. The title of the Agreement in the NERR was the Orica Australia Pty Ltd Boggabri Coal Enterprise Agreement 2020 which is different to the name of the Agreement which is the Orica Australia Pty Ltd Gunnedah Basin Coal Enterprise Agreement 2024.

1. The Employer submitted that it aimed to expand the Agreement’s coverage to include potential new work in the Gunnedah Basin and that the Mining and Industry Union (MEU), who was a bargaining representative for the Agreement, agreed to this. The Employer clarified that Boggabri Mine is currently the only operational mine in the area. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,¹ that this matter constituted a minor technical or procedural error for the purpose of s.188(5)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.  

Relationship with other industrial instruments

1. Clause 6 of the Agreement provides:

This Agreement shall be read subject to the NES which shall have effect in accordance with the Act.

For the purposes of applying the Better-off Overall test, the parties agree that the Mining Industry Award 2010 as amended as at the time of certification shall apply.

The Company acknowledges that there is a dispute as to whether the Employees (or some of them) are eligible to be members of the Coal LSL portable long service scheme.

If the dispute is resolved (including on appeal) on a basis that establishes that the Employees are eligible to be members of the scheme, consideration will be given as to whether the Mining Industry Award 2010 or the Black Coal Award 2020 shall apply in future.

1. The MEU filed a F18 Declaration by employee organisation in which it indicated that it did not support approval of the Agreement because the Agreement refers to the incorrect modern award. The MEU submits that the Black Coal Mining Industry Award (BCMI Award) is the relevant modern award for the purpose of the better off overall test (BOOT). The MEU relied on multiple authorities to support its position.[1] The Employer disagrees with the MEU and submits that the Mining Industry Award is the correct modern award for the purpose of the BOOT. The MEU made further submissions that the Commission does not need to determine the correct modern award for the purpose of the approval decision, as the Agreement will pass the BOOT on the basis of either the BCMI Award or the Mining Industry Award being the relevant modern award. However, the MEU wishes its opposition to clause 6 of the Agreement noted.

Casual Employees

1. The Commission raised a concern with the Employer that casual employees may not be better off overall under the Agreement when performing overtime and working on weekends or public holidays. The Employer submitted that it has not recruited a casual employee during the term of the previous Agreement and given the labour market conditions and low unemployment statistics so it is not reasonably foreseeable that Orica will employ a casual employee during the life of this Agreement. The MEU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that Orica will not employ a casual employee during the life of this Agreement.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Appendix 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.

Section 186, 187, 188 and 190

1. I am satisfied that, subject to the undertakings referred to above, each award covered employee, and each reasonably foreseeable employee, for the Agreement would be better off overall if the Agreement applied to the employee than if either the BCMI Award or the Mining Industry Award applied to the employee.  On this basis, it is not necessary for the purpose of this decision to resolve the dispute between the Employer and the MEU as to the correct Award for the BOOT. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The MEU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the MEU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 August 2024. The nominal expiry date of the Agreement is 1 April 2028.

DEPUTY PRESIDENT

[1] Black Coal Award - Orica Australia v Coal Mining Industry (Long Service Leave Funding) Corporation [2023] FCA 1515; Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68 at [215], citing Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [231], [257] – [259] and Construction, Forestry, Maritime, Mining and Energy Union v Orica Australia Pty Ltd[2020] FWC 278.

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