Viterra Limited

[2013] FWCA 3802

[2013] FWCA 3802

FAIR WORK COMMISSION

DECISION

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

Viterra Limited
(AG2013/1256)

VITERRA LTD - PORT PIRIE - AGREEMENT 2010

[AE882691] (AG2010/19476)

Grain handling industry
COMMISSIONER HAMPTON	ADELAIDE, 14 JUNE 2013

Application for termination of the Viterra Ltd - Port Pirie - Agreement 2010.

[1] This decision concerns an application by Viterra Limited (Viterra) pursuant to s 225 of the Fair Work Act 2009 (the Act) that seeks to terminate the Viterra Ltd - Port Pirie - Agreement 2010. The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 27 March 2013.

[2] The Act relevantly provides as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[3] I have considered this matter based upon the comprehensive materials filed by Ms Gilbey of Viterra and Mr Hopgood of The Australian Workers’ Union (the AWU).

[4] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act. It is also evident that the employees who are presently subject to the Agreement support its termination. 1 The AWU, as a party covered by the Agreement and a representative of the employees, also supports the termination.

[5] The employment of those employees will fall back to the coverage and application of the Viterra Ltd Country General Hands Agreement 2011 2. That agreement will in this case provide appropriate terms and conditions for the enterprise and employees concerned given the significant change that has taken place in terms of the role and operations of the Port Pirie terminal.

[6] Viterra has provided signed undertakings to the Commission and the employees, which have been endorsed by the AWU. Those undertakings concern clause 5.2, Allowances and clause 9.1 Skill Based Career Path of the Agreement as they would continue to apply to the employees transferring to the “new” agreement. I have accepted the undertakings as attached to this decision and dealt with the application on that basis.

[7] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[8] The termination will take effect on and from 14 June 2013.

COMMISSIONER

 1   A notice of listing was also provided to all employees by the FWC and this invited employees with concerns to contact the Commission. No concerns have been raised.

 2   AE886532  PR511081  30 June 2011.

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<Price code A, AE882691  PR537845>