Application for approval of the Orrcon Distribution Westall Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as the Orrcon Distribution Westall Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Orrcon Distribution Pty Ltd T/A Orrcon Steel. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, 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.

[4] The United Workers Union (UWU) 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.

[5] The following provision was identified as likely to be inconsistent with the National Employment Standards (NES):

• Clause 19 - Overpayment, in respect to withholding monies at termination, may be inconsistent with Chapter 2, Part 2.2, Division 2 of the Fair Work Act 2009 (Cth).

Clause 4 of the Agreement should have the result that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. In any event, this issue has been separately provided for in the undertaking. Whilst this resolves the concerns relating to the interaction of clause 19 with the requirements for approval of an enterprise agreement, it says nothing of whether all or any conduct engaged in pursuant to clause 19 would amount to a deduction that is permitted by Division 2 of Part 2-9 of the Act. That is not an issue I needed to concern myself with for the purposes of approving the Agreement.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 December 2025. The nominal expiry date of the Agreement is 21 November 2028.

[7] After conferring with the parties, I have decided to vary the Agreement pursuant to section 218A. There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[1] This includes in circumstances, as was the case here, to correct or amend an obvious error, defect or irregularity in the Agreement. The variations that I order reflect the agreement of the parties and amend Clause 43 of the Agreement as follows:

1. Clause 43.6 is amended to read:

"It is acknowledged that under this Agreement a workplace delegate may represent the

industrial interests of eligible Employees (meaning Employees who are eligible to be members of the delegate's organisation) who wish to be represented by the workplace

1. Consultation about major workplace change or changes to rosters or regular hours of work;
2. Resolution of disputes;

1. Enterprise bargaining, where the workplace delegate has been properly appointed as a bargaining representative; and
2. Any process or procedures under this Agreement, Company policy, under which eligible Employees are entitled to be represented and which concerns their industrial interests."

"The Company will enable to workplace delegate to communicate with eligible Employees for the purpose of representing their industrial interests under clause 43.6. This includes discussing membership of the delegate's organisation and representation with eligible employees. This communication may take place during working hours, work breaks, or before or after work."

"Generally, any request for an Employee to meet with their Union Official should ensure that the meetings take place in non-working times. However, if due to exceptional circumstances the Union Official would like to request a meeting during work time, the Employer may consider such a request. The consideration will be made on a case-by-case basis and will take into account the expectation that there will be no undue impact on the business and/or operational requirements. For the avoidance of doubt, this clause does not limit the rights of Union Delegate to reasonable communication under clause 43.7 of this Agreement."

[8] These amendments will take effect on the date of this decision. A copy of the Agreement as varied is provided with this decision.

[1] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

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