STATEMENT

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

Viterra Operations Pty Limited T/A Viterra
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2019/7488)

VITERRA OPERATIONS PTY LTD BULK LOADING PLANTS ENTERPRISE AGREEMENT 2016
[AE426139]

Stevedoring industry
COMMISSIONER HAMPTON	ADELAIDE, 27 MARCH 2020

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] This dispute concerns the introduction by Viterra Operations Pty Ltd (Viterra) of a new time and attendance system (the Kronos System) at its Bulk Loading Plants. It is a system that relies on fingerprint scanning to verify the start and finish times of employees. Viterra has indicated that it has consulted with the employees concerned, updated its Privacy Policy and Collection Notice to cover the collection of biometric data, and has successfully implemented the same system to all of its many other sites commencing in 2015.

[2] The bulk loading plants fall within the coverage of the Viterra Operations Pty Ltd Bulk Loading Plants Enterprise Agreement 2016 (the Agreement).

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which is also covered by the Agreement, raised concerns regarding the implementation of the Kronos system as proposed by Viterra on a number of grounds including the impact that a time recording system of this nature might have on the practice known as Hot Seat Changovers. This is a process by which, at the change of each shift whilst there is active loading being performed, the Loading Operator(s) completing their shift is required to provide a briefing (as to the stage that loading is at and any issues that may be relevant) to the incoming Operator without an interruption to the loading. As a result, Hot Seat Changeovers require that there be some overlap between the shifts. Concerns were also raised on behalf of some Operators about the nature and security of the Kronos system and the information collected.

[4] The matter was the subject of a conference before the Commission on 22 January 2020. Following constructive discussions, the outcome of that conference was that Viterra would develop and advance a detailed proposal on the operational aspects of the Kronos System and provide further information regarding the privacy and security issues of the system to the CFMMEU and the workforce as the basis for further discussions. In addition, the parties would then report back to the Commission in late March with liberty to apply generally being granted.

[5] Prior to the report back, Mr Short on behalf of Viterra, wrote to the Commission and the CFMMEU to provide an update and indicated that the current events surrounding the COVID-19 Virus and the containment measures being adopted within the community had altered both the company’s priorities and the practices surrounding the practical implementation of the Kronos system. That is, whilst commencing the use of the Kronos timekeeping system within the Bulk Loading facilities from early April 2020, employees will be issued with a card, rather than the use of finger scanning. Further, it had already paused shipping for shift changes and was conducting Hot Seat Changeovers by phone or writing until further notice in the interests of the health and safety of employees. In that context, Viterra sought that the dispute application be held in abeyance with liberty to apply when “normal” operations resumed.

[6] Whilst acknowledging that these interim arrangements addressed the substantive issues in the matter, the CFMMEU sought that the Commission assist to record the understanding and facilitate an agreement on the process to be followed if and when circumstances change.

[7] The report back proceeded before this arm of the Commission on 27 March 2020 at which time Mr Short further outlined the company’s position to continue with the interim arrangements given the present circumstances. Further, he confirmed that there would be no further changes impacting upon the areas of concern regarding the Kronos system or Hot Seat Changeovers beyond these interim arrangements without providing notice of what was proposed to the CFMMEU and the employees, and giving them an opportunity to raise any sconcerns with the company. If concerns remained after having had further discussions, either Viterra or the CFMMEU would be at liberty to have this matter be re-listed before the Commission.

[8] Mr Duignan on behalf of the CFMMEU indicated that having received that undertaking from Viterra, it was content with this approach and sought the arrangements be confirmed by the Commission. This Statement performs that task.

[9] I observe that the approach adopted by the parties in this matter is pragmatic and an appropriate recognition of the operational and health issues facing Viterra and its employees, and the priorities of the company and the CFMMEU in the present environment.

[10] Accordingly, this matter is adjourned with liberty to apply being granted to the parties to seek a re-listing of the conference if and when required.

COMMISSIONER

Appearances:

A Short of Minter Ellison with permission on behalf of Viterra Operations Pty Limited T/A Viterra.

C Duignan for the Construction, Forestry, Maritime, Mining and Energy Union.

Conference details:

2020
Adelaide
January 22 (in person), March 27 (by telephone).

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved Viterra Operations Pty Limited and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Viterra sought to introduce a new time and attendance system, the Kronos System, which would rely on fingerprint scanning at its Bulk Loading Plants. The CFMMEU raised concerns about the impact of this system on shift change practices and the security and privacy of the data collected. The dispute was brought before the Commission under section 739 of the Fair Work Act 2009, with the CFMMEU contesting the proposed changes to the timekeeping system. The Commission was tasked with deciding whether Viterra's proposed system was acceptable under the terms of the Viterra Operations Pty Ltd Bulk Loading Plants Enterprise Agreement 2016, and if the proposed changes complied with the National Employment Standards.

The legal issues before the Commission included whether Viterra's introduction of the Kronos System was permissible under the existing enterprise agreement and whether the system would adversely affect the practice of Hot Seat Changeovers. Additionally, the Commission had to consider the privacy and security concerns raised by the CFMMEU regarding the biometric data collected by the system. The Commission also had to balance Viterra's operational needs with the health and safety considerations arising from the COVID-19 pandemic. The Court needed to determine whether Viterra's interim measures, which involved using a card-based system and conducting shift changes by phone or writing, adequately addressed the concerns raised by the CFMMEU.

The Commission noted that Viterra's interim measures, implemented in response to the COVID-19 pandemic, effectively addressed the substantive concerns raised by the CFMMEU. Viterra agreed to continue these measures until normal operations resumed and promised to consult with the CFMMEU and employees before making any further changes. The Commission concluded that the approach adopted by the parties was pragmatic and appropriate given the current circumstances. It agreed to adjourn the dispute with liberty to apply, allowing either party to seek a re-listing of the conference if necessary in the future. The Commission's decision recognised the need for flexibility in addressing workplace changes in an environment shaped by significant external factors.

Viterra Operations Pty Limited T/A Viterra v Construction, Forestry, Maritime, Mining and Energy Union

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established