GrainCorp Operations Limited - [2015] FWCFB 7376

[2015] FWCFB 7376

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 4 Sch. 6—Modern enterprise award

GrainCorp Operations Limited
(EM2013/33)

SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT BULL

SYDNEY, 27 NOVEMBER 2015

Application to make a modern enterprise award to replace several enterprise instruments - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Schedule 6 - Fair Work Act 2009 ss. 134, 284 - application granted - modern enterprise award will be made.

[1] GrainCorp Operations Limited (GrainCorp or the applicant) has applied under item 4 of Schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) for modern enterprise awards to be made to replace eight enterprise instruments (the GrainCorp Awards), being the:

● Grainco Australia Limited Award - Queensland 2003 1 (the Queensland Award);

● Storage Services - Bulk Grain Workers - NUW - Award 1999 2 (the NUW Award);

● Australian Workers' Union - Grain Elevators Board Victoria Award 1999 3 (the Grain Elevators Award);

● GrainCorp Operations Ltd (Port Kembla Terminal) Award 1999 4 (the Port Kembla Award);

● GrainCorp Operations Ltd (Newcastle Terminal) Award 1999 5 (the Newcastle Award);

● The Australian Workers' Union - GrainCorp Operations Ltd. (Bulk Handling) Award 1999 6 (the Bulk Handling Award);

● Vicgrain Limited Administrative, Technical and Maintenance Employees Award 1998 7 (the Vicgrain Award); and the

● GrainCorp Operations Limited (Head Office) Award 1998 8 (the Head Office Award).

[2] The application was subsequently amended so that the applicant only sought a modern enterprise award to replace the Queensland Award, the Grain Elevators Award and the Bulk Handling Award.

[3] We note that GrainCorp is not itself respondent to the Queensland Award. Rather, it acquired the employer respondent, Grainco Queensland Co-operative Association Limited, in 2003. 9 Further, we note that the Grain Elevators Board, Victoria, which was the employer respondent to the Grain Elevators Award,10 became GrainCorp in 1992.11 In its final form, the making of a modern enterprise award in the terms sought by the applicant was supported by the Australian Workers’ Union (AWU) and not opposed by any other union or person.

[4] In the hearing before us, Mr Salmon appeared for GrainCorp. Ms Gherjestani appeared for the AWU. Mr Nguyen appeared for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Mr Keats appeared for the Maritime Union of Australia (MUA). The National Union of Workers (NUW) did not appear at the hearing, but was represented at subsequent conferences by Mr Snowball.

[5] We have decided to make a modern enterprise award. These are our reasons for that decision.

The legislative task

[6] We commence by noting that other than modern enterprise awards made under Schedule 6 of the Transitional Act, no new enterprise awards will be made. This is the effect of s.168C of the Fair Work Act 2009 (Cth) (the Act), which is contained within Part 2-3—Modern awards.…

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.

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Details

AGLC: GrainCorp Operations Limited [2015] FWCFB 7376
Case: [2015] FWCFB 7376
Decision Date: 27 NOVEMBER 2015

CaseChat Overview and Summary

In this case, GrainCorp Operations Limited sought to replace several existing enterprise agreements with a modern enterprise award. The application was heard by the Fair Work Commission, which was exercising its powers under the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The primary issue before the Commission was whether the application met the statutory criteria for the creation of a modern enterprise award, including whether the application process had been followed correctly and whether the proposed award would serve the interests of fairness and efficiency in the workplace.

The Commission carefully considered the evidence and submissions presented by GrainCorp Operations Limited. It found that the application was procedurally sound and that the proposed award would provide a clear, streamlined set of conditions that would benefit both employers and employees. The Commission was satisfied that the proposed award would not negatively impact the employees' terms and conditions of employment and that it would provide a fair and efficient workplace. The Commission concluded that the proposed modern enterprise award would serve the public interest by promoting productivity, fairness, and flexibility in the workplace.

Accordingly, the Commission granted the application and directed that a modern enterprise award be made. The new award will replace the existing enterprise agreements and provide a modern, streamlined set of employment conditions for GrainCorp Operations Limited and its employees. The decision demonstrates the Commission's commitment to promoting efficient and fair workplaces through the use of modern enterprise awards. The outcome of this case is likely to be of interest to employers and employees in the agricultural sector, as well as to those involved in the regulation of workplace relations in Australia.

Orders