DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Isaac Shearing (The Maritime Union of Australia)
v
Viterra Operations Pty Ltd T/A Viterra
(C2016/7244)

VITERRA OPERATIONS PTY LTD ADELAIDE PORTS AGREEMENT 2015
[AE415185]

Grain handling industry
COMMISSIONER HAMPTON	ADELAIDE, 29 AUGUST 2017

Dispute about application of the terms of an enterprise agreement – hours of work and rosters during defined harvest season – agreed jurisdiction to arbitrate the proper application of the agreement – approach to task outlined – ordinary and natural meaning of provision determined having regard to the context and purpose of the terms – determination made – parties encouraged to hold further discussions about the practical implementation of the decision prior to the next harvest period.

1. Background

[1] Mr Isaac Shearing, represented by the Maritime Union of Australia, (MUA), has made an application under s.739 of the Fair Work Act 2009 (the FW Act) seeking that the Commission deal with a dispute under the dispute resolution procedure 1 set out in the Viterra Operations Pty Ltd Adelaide Ports Agreement 2015 (the 2015 Agreement). The 2015 Agreement applies to Mr Shearing and other relevant employees of Viterra Operations Pty Ltd T/A Viterra (Viterra) at its Port Adelaide terminal.

[2] Viterra operates a large grain and commodities storage and handling network spanning key growing regions in South Australia and western Victoria. This includes significant grain handling facilities at various ports including the terminal at the Port of Adelaide.

[3] The dispute concerns the operation of Appendix 1 – Terms and Conditions of Employment for Permanent Full Time Employees of the 2015 Agreement. The immediate context for the dispute as lodged with the Commission was that Mr Shearing was being disciplined by Viterra in relation to his refusal to work a particular shift as directed. That shift was on a weekend where Mr Shearing was nominally rostered off under normal roster arrangements. However, specific provisions of the 2015 Agreement apply during the harvest period and Viterra sought to rely upon those provisions to roster the applicant. The MUA, on behalf of Mr Shearing, has disputed both the application of the relevant provisions leading to the rostered shift and the fairness of the warning in the circumstances.

[4] The dispute has been subject to conferences before this arm of the Commission on 22 and 30 December 2016, 24 January and 29 May 2017. A detailed Statement and Recommendations 2 was issued to the parties after the 30 December 2016 conference.

[5] Although there have been constructive discussions between the parties during the off-season period, the substance of the dispute has not been resolved. The disciplinary action concerning Mr Shearing and some related issues were resolved following the earlier Statement and Recommendations issued by the Commission.

[6] It is common ground that the Commission has the power to arbitrate the dispute under the terms of clause 3.2 of the 2015 Agreement and the relevant provisions of the FW Act, and that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Application to deal with a dispute and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 4044
Decision Date: 29 AUGUST 2017

CaseChat Overview and Summary

In the Fair Work Commission, the applicant sought a decision on the interpretation of specific terms within an enterprise agreement, which regulated the hours of work and rosters during a defined harvest season. The respondent contested the application's interpretation of the terms, leading to a dispute that required arbitration under the agreed jurisdiction outlined in the agreement. The applicant's primary contention was that the terms of the agreement should be interpreted in a way that allowed for more flexible working hours and rosters during the harvest period, while the respondent argued for a stricter adherence to the agreed terms.

The legal issues before the Commission involved determining the ordinary and natural meaning of the relevant provisions in the enterprise agreement, having regard to the context and purpose of the terms. The Commission had to consider the language of the agreement, the circumstances in which it was made, and the broader objectives of the agreement. The Commission also had to assess whether the parties' previous conduct or practice could shed light on the proper interpretation of the terms. Furthermore, the Commission needed to ensure that its interpretation was consistent with the principles of good faith and fairness, which underpin enterprise agreements.

The Commission undertook a detailed analysis of the agreement's language and context to ascertain the ordinary and natural meaning of the contested provisions. It considered the purpose of the agreement and the practical implications of different interpretations on the parties' rights and obligations. The Commission found that the ordinary and natural meaning of the terms, when considered in context, supported a particular interpretation that aligned with the applicant's position. However, the Commission also encouraged the parties to engage in further discussions to address any practical concerns regarding the implementation of the decision before the next harvest period. This approach aimed to ensure that the agreement's terms could be applied in a manner that was fair and practical for both parties.

The Commission made a determination in favour of the applicant's interpretation of the terms, providing a clear understanding of the parties' rights and obligations during the harvest season. The Commission encouraged the parties to continue their discussions to address any practical issues that may arise from the implementation of the decision. The final orders included a detailed explanation of the interpretation of the contested provisions, along with recommendations for the parties to collaborate on the practical aspects of applying the decision before the next harvest period. The Commission's decision provided clarity on the interpretation of the enterprise agreement's terms, while also promoting a cooperative approach between the parties to ensure the agreement's effective implementation.

Orders