DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Viterra Operations Pty Ltd
(AG2017/5970)

VITERRA LTD - PORT LINCOLN ENTERPRISE AGREEMENT 2012

Grain handling industry
COMMISSIONER HAMPTON	ADELAIDE, 19 MARCH 2018

Application for termination of the Viterra Ltd - Port Lincoln Enterprise Agreement 2012 – employee organisation opposed but declined to provide submissions and evidence in support of that position – long standing bargaining impasse – significant potential difference between enterprise agreement and modern enterprise award for all parties – no undertakings provided by applicant employer – whether termination contrary to the public interest – whether termination appropriate in light of considerations established under the Act – bargaining impact assessed and not sufficient in its own right to meet requirements given impact upon employees and their bargaining position – uncontested productivity and related benefits from termination – mixed employee views about application with considerable apparent support for reversion to the modern enterprise award - on balance, termination of enterprise agreement not contrary to public interest and appropriate – relatively long delay appropriate in all of the circumstances – termination made.

1. The application and the process leading to the hearing of the matter

[1] This decision concerns an application by Viterra Operations Pty Ltd 1 (Viterra) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Viterra Ltd - Port Lincoln Enterprise Agreement 2012 (the Enterprise Agreement).

[2] The Enterprise Agreement was approved 2 under the terms of the FW Act and passed its nominal expiry date on 2 July 2015. Both prior to, and since that time, the relevant parties have unsuccessfully attempted to negotiate a replacement agreement. These parties include the Australian Workers’ Union (AWU), which is covered by the Enterprise Agreement and represent some, and potentially many, of the employees at the Port Lincoln terminal where that instrument applies.

[3] The AWU opposes the application and in the lead up to the hearing, with the support of both parties, another Member of the Commission 3 conducted further facilitated discussions between them with a view to achieving an agreed proposed new agreement that could be put to the employees for approval. Despite the best endeavours of all concerned, this outcome was not achieved and Viterra subsequently provided comprehensive written submissions and evidence in support of its case to terminate the Enterprise Agreement.

[4] Viterra seeks the termination of the Enterprise Agreement on a number of grounds and relies upon various propositions, including the following:

• The employer is seeking a replacement enterprise agreement with three key changes to hours of work arrangements including removal of the established Hours of Work provision (subclause 6.1.1.1) and the shipping provision (clause 6.5), and changes to the annualised salary hours (ASH) bank;

• Despite numerous bargaining meetings conducted over three years, changes to the proposed agreements to respond to employee concerns, and three different votes of employees, no new…

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.

Continue reading Re Viterra Operations Pty Ltd

Details

AGLC: Re Viterra Operations Pty Ltd [2018] FWCA 1161
Case: [2018] FWCA 1161
Decision Date: 19 MARCH 2018

CaseChat Overview and Summary

In the matter of Viterra Operations Pty Ltd, the Fair Work Commission was called upon to decide an application to terminate the Viterra Ltd - Port Lincoln Enterprise Agreement 2012. The application was made by Viterra Operations Pty Ltd, and the relevant union, which had been recognised as the bargaining representative for the employees, opposed the application. Despite the opposition, the union declined to provide any submissions or evidence in support of its position. The dispute centred around a long-standing bargaining impasse and the significant potential differences between the enterprise agreement and the modern enterprise award applicable to all parties involved.

The primary legal issues for the Commission to determine were whether the termination of the enterprise agreement would be contrary to the public interest and whether the termination was appropriate in light of the statutory considerations. The Commission assessed the bargaining impact and found that it was not sufficient in its own right to meet the statutory requirements, particularly given the impact on employees and their bargaining position. However, the Commission also noted the uncontested productivity and related benefits that would result from the termination. Additionally, the mixed views of employees, with considerable apparent support for reversion to the modern enterprise award, were considered.

The Commission concluded that the termination of the enterprise agreement was not contrary to the public interest and was appropriate in the circumstances. The Commission acknowledged the relatively long delay in making the decision but found it appropriate given all the circumstances. The Fair Work Commission made an order terminating the Viterra Ltd - Port Lincoln Enterprise Agreement 2012, effective from the date of the decision.

Orders