Viterra Operations Pty Ltd

[2020] FWCA 52

[2020] FWCA 52

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viterra Operations Pty Ltd
(AG2019/4442)

VITERRA OPERATIONS PTY LTD ADELAIDE PORTS AGREEMENT 2019

Grain handling industry
COMMISSIONER PLATT	ADELAIDE, 6 JANUARY 2020

Application for approval of the Viterra Operations Pty Ltd Adelaide Ports Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Viterra Operations Pty Ltd Adelaide Ports Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Viterra Operations Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 25 November 2019.

[3] On 29 November 2019, 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] In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency, I do not believe it has had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[5] The Applicant has submitted an undertaking in the required form dated 5 December 2019. The undertaking deals with the following topics:

•  A permanent part-time employee, who does not work the prescribed public holiday, will be paid the average daily amount of the previous twelve months for all hours worked at the ordinary base rate to a maximum of eight hours, or their rostered hours, whichever is greater.

•  An employee who is absent from work is required, as soon as practicable, to notify Management of their absence, the nature of the personal illness and the estimated duration of absence.

•  If a period of compassionate leave coincides with a period of annual leave, the employee is taken not to be on annual leave at that time.

•  In respect of better off overall issues relating to Level 1 casual, Level 2 permanent part-time and Level 2 casual employees, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery. 1

[6] 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 provide a view.

[7] 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.

[8] The Construction, Forestry, Maritime, Mining and Energy Union, 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.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 October 2022.

COMMISSIONER

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 1   [2017] FWCFB 1664