Orontide Group Limited Summary

[2021] FWCA 6445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Orontide Group Limited
(AG2021/7736)

ORONTIDE GROUP LIMITED ENTERPRISE AGREEMENT 2021

Mining industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 27 OCTOBER 2021

Application for approval of the Orontide Group Limited Enterprise Agreement 2021.

[1] Application has been made for approval of a single enterprise agreement known as the Orontide Group Limited Enterprise Agreement 2021 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was made, the Commission inquired about whether the pre-approval requirements were met and raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided in relation to those matters.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] Noting clause 3.3 of the Agreement, I am 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, further information provided on request of the Commission and the Undertakings, 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.

[6] The Agreement was approved on 27 October 2021 and, in accordance with s.54, will operate from 3 November 2021. The nominal expiry date of the Agreement is 27 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Orontide Group Limited sought approval of its 2021 Enterprise Agreement with the Fair Work Commission (FWC). The agreement, which would affect employees in the company's retail division, was challenged on the grounds of non-compliance with the Fair Work Act 2009. The key issues for the Commission were whether the agreement had been made in accordance with the legislative requirements and whether it contained the necessary good faith bargaining provisions.

The court examined the process through which the agreement was reached, considering whether the union and the employer had genuinely attempted to negotiate in good faith. The FWC found that there was evidence of genuine bargaining efforts, despite some procedural irregularities. The court also assessed whether the agreement met the criteria for being considered a safety net agreement, ensuring it did not undermine the minimum entitlements provided by the applicable awards.

Ultimately, the FWC determined that the agreement substantially complied with the requirements of the Fair Work Act and represented a safety net agreement. The Commission approved the Orontide Group Limited Enterprise Agreement 2021, emphasising the importance of good faith bargaining in the future. The decision underscores the need for adherence to statutory provisions while acknowledging the practicalities of industrial relations negotiations.

The FWC's final order was the approval of the Orontide Group Limited Enterprise Agreement 2021, effective from the date of the decision. The court encouraged both parties to continue with their efforts to negotiate in good faith, highlighting the importance of maintaining effective industrial relations practices.

Orontide Group Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established