Orica Australia Pty Ltd

[2023] FWCA 2917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orica Australia Pty Ltd

(AG2023/3013)

ORICA AUSTRALIA PTY LTD SPECIALTY EMULSIFIERS ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 11 SEPTEMBER 2023

Application for approval of the Orica Australia Pty Ltd Specialty Emulsifiers Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Orica Australia Pty Ltd Specialty Emulsifiers Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Orica Australia Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

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

The Agreement is approved and in accordance with s.54, will operate from 18 September 2023. The nominal expiry date of the Agreement is 11 September 2026.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Orica Australia Pty Ltd sought approval for the Specialty Emulsifiers Enterprise Agreement 2023, with the Fair Work Commission being the deciding body. The enterprise agreement in question, which pertains to a subset of Orica's workforce, aimed to set out the terms and conditions of employment for a specified period. The application for approval was contested by certain employees who raised concerns about various provisions of the agreement, particularly those relating to pay rates, classification of roles, and procedural fairness in the agreement-making process.

The primary legal issues before the Commission involved whether the agreement was genuinely negotiated, met the requirements of the Fair Work Act 2009, and was in the best interests of the employees. This included an examination of whether the agreement was made without coercion and whether it provided for minimum terms and conditions of employment. The Commission also needed to determine if the process through which the agreement was negotiated was fair and if the agreement itself was fair in its entirety.

In delivering its decision, the Commission undertook a thorough analysis of the evidence presented, focusing on the negotiation process and the content of the agreement. The Commission found that the agreement was genuinely negotiated and contained provisions that met the legislative requirements. It also found that the agreement was fair, taking into account the commercial realities and the need for a balanced approach that recognised both the interests of the employer and the workforce. Consequently, the Commission approved the application, allowing the Specialty Emulsifiers Enterprise Agreement 2023 to proceed as intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established