ORICA AUSTRALIA PTY LTD NSW QUARRY SERVICES ENTERPRISE AGREEMENT 2026

Application for approval of the Orica Australia Pty Ltd NSW Quarry Services Enterprise Agreement 2026

[1] This decision concerns an application for approval of the Orica Australia Pty Ltd NSW Quarry Services Enterprise Agreement 2026 (the Agreement). The application has been made under section 185 of the Fair Work Act 2009 (the FW Act) by Orica Australia Pty Ltd (the Applicant).

[2] The Agreement is a single enterprise agreement. The Fair Work Commission must approve the Agreement if the requirements in sections 186 and 187 of the FW Act are met.

[3] Section 186(2)(c) of the FW Act requires the Fair Work Commission to be satisfied that the terms of the Agreement do not contravene section 55 of the FW Act. In considering the application, I raised a concern with the Applicant, The Australian Workers' Union (AWU), which was a bargaining representative for the Agreement, and the other bargaining representatives. The concern was in relation to hours of work (clause 10), taking paid annual leave (clause 18.3), public holidays (clause 27), request for flexible working arrangements (clause 28), and abandonment of employment (clause 32.2(e)). The concern was that those clauses may be inconsistent with the National Employment Standards (NES). I sought confirmation as to whether the Applicant intended to rely upon clause 2.1 of the Agreement, which can be best described as a NES precedence clause, to resolve the concern or propose an undertaking. The Applicant confirmed that it intends to rely upon clause 2.1 of the Agreement. Based upon that confirmation from the Applicant, the requirement in section 186(2)(c) is satisfied.

[4] Section 186(2)(d) of the FW Act requires the Fair Work Commission to be satisfied that the Agreement passes the better off overall test (BOOT). The assessment as to whether the Agreement passes the BOOT is applied in accordance with section 193A of the FW Act. In considering the application, I raised a concern with the Applicant, the AWU and the other bargaining representatives that the Agreement provided for payment of a loaded rate to casual employees. That gave rise to a concern that the Agreement may not pass the BOOT. On filing the application, the Applicant identified an issue with clause 14.8 of the Agreement, which concerns payment of an overnight allowance. I consider this also gave rise to a concern about the BOOT. The Applicant proposed an undertaking to meet these concerns. The Commission sought the views of the AWU and the other bargaining representatives as to the undertaking. The AWU and the other bargaining representatives did not express a view. I accept the undertaking. In particular, I am satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[5] Section 187(4) of the FW Act requires the Fair Work Commission to be satisfied as to the requirements relating to particular kind of employees referred to in Subdivision E of Part 2-4 of the FW Act. Shiftworkers are such a group of employees. The relevant approval requirements that apply to shiftworkers are set out at section 196 of the FW Act. The Agreement contains a definition of a shiftworker at clause 3. I raised two concerns with the Applicant, the AWU and the other bargaining representatives in relation to shiftworkers. The first concern was that the Agreement does not appear to define or describe an employee as a shiftworker for the purpose of the NES. The second concern was in relation to the definition of shift work at clause 3. This definition gave rise to a further BOOT concern. The Applicant proposed an undertaking to meet these concerns. The Commission sought the views of the AWU and the other bargaining representatives as to the undertaking. The AWU and the other bargaining representatives did not express a view about the undertaking. I accept the undertaking. In particular, I am satisfied that that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[6] The Agreement as filed with the Commission contained several incorrect references to other clauses in the Agreement. I am satisfied that the incorrect clause references are obvious errors that should be corrected pursuant to section 218A of the FW Act. The Agreement will be varied pursuant to section 218A of the FW Act to correct these obvious errors. The Agreement, as varied, is annexed to this Decision.

[7] Based on the material provided by the Applicant and the AWU, each of the other requirements of the FW Act that are relevant to this Agreement are satisfied.

[8] Section 201 of the FW Act requires the approval decision to note certain matters. The first such matter that is relevant to this application is section 201(2) of the FW Act. The Australian Workers' Union, which was a bargaining representative for the Agreement, has given the Fair Work Commission a notice under section 183(1) of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act, I note that the Agreement covers The Australian Workers' Union. The second such matter that is relevant to this application is section 201(3) of the FW Act. I note that the Agreement is approved with the attached undertaking, which is taken to be a term of the Agreement.

[9] The Agreement is approved and, in accordance with section 54 of the FW Act, it will operate from 7 April 2026. The nominal expiry date of the Agreement is 31 March 2029.

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