Viterra Operations Pty Ltd Summary

[2025] FWCA 1526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Viterra Operations Pty Ltd

(AG2025/1081)

VITERRA OPERATIONS PTY LTD - PORT GILES AGREEMENT 2025

Agricultural industry
COMMISSIONER REDFORD	MELBOURNE, 7 MAY 2025

Application for approval of the Viterra Operations Pty Ltd - Port Giles Agreement 2025

An application has been made for approval of an enterprise agreement known as the Viterra Operations Pty Ltd - Port Giles Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Viterra Operations Pty Ltd (Viterra). The Agreement is a single enterprise agreement.

Undertakings

In response to several issues raised with Viterra in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

The undertakings relate to:

a.Additional payments – casual and part time employees.

Voting on the agreement

Clarity was sought with Viterra in relation to an issue regarding the workforce. From the F17B Declaration filed in support of this application, it appeared that of the 22 employees who will be covered by the agreement, 10 were casual. Taking into account the decision of the Full Bench in Appeal by Kmart Australia Limited & Ors[1], and in circumstances where it appeared that 16 employees cast a valid vote in relation to the agreement, and 5 voted against the agreement, I was concerned that if employees voted in the ballot who were not eligible to vote the outcome may have been affected. Further material was provided by Viterra which satisfied me that the employees who participated in the vote were eligible to do so, and employees that were not eligible had been excluded.

Consideration

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

Typographical errors

Together with its application, Viterra sought that if the agreement was approved, that it be varied to correct several minor typographical errors. I intend to exercise my power pursuant to s 218A(2)(b) of the Act to correct these obvious errors as I am satisfied that they are errors, defects or irregularities within the meaning of the Act. I note that the views of the bargaining representatives have been sought in relation to this variation and there was no objection. Accordingly, the Agreement is varied as follows:

a.The second of the references to clause 3.4 in clause 3 of the Agreement shall be replaced with “clause 3.5”
b.Clause 6.8.1.1 shall be replaced in its entirety with the following:

“Afternoon shift means any approved 8 hour shift, Monday to Friday, finishing subsequent to 6:00pm and at or before midnight.”

This variation will operate from the date the Agreement commences.

COMMISSIONER

ANNEXURE A

[1] [2019] FWCFB 7599

Printed by authority of the Commonwealth Government Printer

Viterra Operations Pty Ltd applied to the Australian Competition and Consumer Commission for approval of the Viterra Operations Pty Ltd - Port Giles Agreement 2025. The agreement sought to establish a long-term supply arrangement for grain handling and storage services in Port Giles. The primary dispute centred on whether the agreement would substantially lessen competition in the relevant market.

The central legal issues before the court were whether the agreement would confer, enhance or maintain market power and if it would lead to substantial lessening of competition. The ACCC argued that the agreement could lead to the substantial lessening of competition by potentially restricting access to Port Giles for other grain handlers, thereby reducing competitive pressures and increasing prices for customers.

The court examined the market dynamics, the bargaining positions of the parties, and the potential effects of the agreement on competition. The court concluded that while the agreement might confer some market power, it was unlikely to substantially lessen competition. The court found that the grain handling market in Port Giles had sufficient competition from other handlers and that the agreement did not significantly restrict entry or expansion by other competitors. The court approved the agreement, emphasising the need for ongoing market monitoring to ensure that competitive conditions were maintained.

The final order of the court was the approval of the Viterra Operations Pty Ltd - Port Giles Agreement 2025, subject to ongoing monitoring by the ACCC to ensure compliance with competition law.

Viterra Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established