Orica Australia Pty Ltd

[2022] FWCA 4389

[2022] FWCA 4389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orica Australia Pty Ltd

(AG2022/5075)

Orica West and Central Quarry and Construction Services Enterprise Agreement 2022

Quarrying industry
COMMISSIONER PLATT	ADELAIDE, 14 DECEMBER 2022

Application for approval of the Orica West and Central Quarry and Construction Services Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Orica West and Central Quarry and Construction Services Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Orica Australia Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 December 2022 and was determined on the papers.

1. The Applicant has submitted an undertaking in the required form dated 12 December 2022. The undertaking inserted a National Employment Standards (NES) precedence clause.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. There are three NES issues that require comment:

·   Clause 46 of the Agreement, which deals with public holidays, does not provide an entitlement to any other day or part-day declared or prescribed as required by s.115(1)(b) of the Act.

·   Clause 36 of the Agreement indicates that an employee may be required to work a public holiday but does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable. This may be inconsistent with s.114(3) of the Act.

·   Clause 20.3 of the Agreement states that notice of termination is not applicable in the case of summary dismissal for “actual or threatened fighting/assault/acts of violence, actual or threatened verbal abuse, drunkenness…serious neglect of duties, attempted or actual stealing, sexual harassment, divulging company secrets, occupational health and safety breaches, wilful breaches of company policy, committing a criminal offence, loss of any licence of qualification (whether temporary or permanent)”. This appears to be broader than the definition of serious misconduct contained at regulation 1.07 of the Fair Work Regulations 2009.

·   Clause 20.3(e) of the Agreement covers abandonment of employment, however, does not appear to provide for notice of termination. This may be inconsistent with s.117 of the Act.

1. The Applicant has provided an effective NES precedence undertaking, which states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence undertaking, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Australian Workers’ Union (AWU), 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 13 December 2025.

COMMISSIONER

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