Viterra Operations Pty Ltd

[2021] FWCA 6707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viterra Operations Pty Ltd
(AG2021/8164)

VITERRA OPERATIONS PTY LTD - PORT LINCOLN ENTERPRISE AGREEMENT 2021

Agricultural industry
COMMISSIONER PLATT	ADELAIDE, 17 NOVEMBER 2021

Application for approval of the Viterra Operations Pty Ltd - Port Lincoln Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Viterra Operations Pty Ltd - Port Lincoln Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Viterra Operations Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 10 November 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 15 November 2021. The undertaking deals with the following topics:

• Employees will only be directed to work more than 38 hours a week subject to the requirements of s.62 of the Act.

• The entitlement to annual leave in the Agreement has been expressed in weeks, as is consistent with s.87 of the Act.

• Clause 7.1.2.4 of the Agreement has been amended to ensure an employee will not be required to work if they are unwell and unable to complete their shift.

• Employees will be required to provide notice of personal leave as soon as practicable, which may include a time after the leave has commenced.

• When taking personal/carer’s leave, employees will be required to provide evidence that would be to the satisfaction of a reasonable person.

• Clause 7.6.3 has been amended to ensure that the abandonment of employment provision of the Agreement is consistent with the notice requirements contained in s.117 of the Act.

• An employee hired as a Fixed Term Employee will be paid an hourly rate of a Level 3 Permanent Part Time Employee.

[4] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[5] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[6] The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Viterra Operations Pty Ltd applied to the Fair Work Commission for approval of the Viterra Operations Pty Ltd - Port Lincoln Enterprise Agreement 2021. The applicant and the relevant union, the Maritime Union of Australia, had entered into a new agreement that was to replace the existing enterprise agreement. The application was made under section 231 of the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers' Union and the Transport Workers' Union. The opposition was based on various grounds, including that the agreement did not appropriately recognise the role of casual employees and did not provide for sufficient redundancy entitlements for employees.

The Fair Work Commission was required to determine whether the agreement met the "better off overall test" (BOOT) and whether the agreement was a "single, direct and effective means" of resolving workplace issues. The Commission was also required to consider whether the agreement was in the best interests of the employees and whether it complied with relevant legislation. In making its decision, the Commission considered the terms of the agreement, the submissions of the parties, and the evidence presented.

The Fair Work Commission found that the agreement was a single, direct, and effective means of resolving the workplace issues in dispute. The Commission was satisfied that the agreement was a genuine agreement between the parties and that it met the BOOT. The Commission found that the agreement provided for appropriate recognition of the role of casual employees and provided for sufficient redundancy entitlements. The Commission also found that the agreement was in the best interests of the employees and complied with relevant legislation. Accordingly, the Commission approved the agreement. The Commission made an order approving the agreement under section 231 of the Fair Work Act 2009.

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