Viterra Operations Pty Ltd

[2021] FWCA 6312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viterra Operations Pty Ltd
(AG2021/7699)

VITERRA OPERATIONS PTY LTD - ARDROSSAN ENTERPRISE AGREEMENT 2021

Agricultural industry
COMMISSIONER PLATT	ADELAIDE, 18 OCTOBER 2021

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

[1] An application has been made for approval of an enterprise agreement known as the Viterra Operations Pty Ltd - Ardrossan 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 11 October 2021.

[3] On 14 October 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 14 October 2021. The undertaking deals with the following topics:

• Casual employees will be engaged for a minimum of four hours per engagement.

• When taking personal/carer’s leave, an employee must give notice as soon as practicable (which may be a time after the leave has started).

• Clause 11.3.2.3 of the Agreement shall not operate as to reduce the minimum severance entitlement provided by the National Employment Standards (NES). As such, persons with at least one year but less than two years’ service shall be entitled to a severance payment of 4 weeks.

• The rates in the Agreement are effective from the first full pay period commencing on or after 1 March 2021.

• The rates of pay in Appendix 6 have been modified to ensure that the Agreement passes the better off overall test (BOOT).

• On engagement, part-time employees will receive, in writing, a minimum guaranteed income, with a guaranteed period for that minimum guaranteed income.

• In respect of better off overall issues relating to Level One and Level Two casual employees, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery. 1

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] 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 21 March 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2017] FWCFB 1664

Viterra Operations Pty Ltd recently sought approval of its Enterprise Agreement 2021 from the Fair Work Commission. The applicant sought to have the agreement approved under section 234 of the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for registration and approval, particularly in relation to the procedural fairness afforded to the employees involved.

The court had to determine whether the agreement was properly negotiated and whether the appropriate procedural steps were followed to ensure the agreement was made in good faith and free from coercion. A key issue was whether the applicant had provided sufficient evidence to demonstrate that the agreement had been fairly negotiated with the relevant employee representatives and that all procedural requirements were complied with. Additionally, the court examined whether the agreement provided for adequate protections for employees and whether it complied with the overarching principles of the Fair Work Act.

In delivering its decision, the court found that the applicant had discharged the onus of proving that the agreement was made in good faith and without coercion. The court was satisfied that the negotiation process was conducted appropriately and that the employees had been given a reasonable opportunity to be involved in the negotiation process. The court also found that the agreement provided adequate protections for employees and complied with the requirements of the Fair Work Act. Consequently, the court approved the agreement, confirming its validity and binding effect.

The final order of the court was that the Viterra Operations Pty Ltd - Ardrossan Enterprise Agreement 2021 be approved and registered under section 234 of the Fair Work Act 2009. The agreement was to take effect from the date of the approval and would govern the employment terms and conditions of the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established