Viterra Operations Pty Ltd

[2024] FWCA 1371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Viterra Operations Pty Ltd

(AG2024/685)

VITERRA OPERATIONS PTY LTD - THEVENARD TERMINAL - ENTERPRISE AGREEMENT 2023

Agricultural industry
DEPUTY PRESIDENT BELL	MELBOURNE, 17 APRIL 2024

Application for approval of the Viterra Operations Pty Ltd - Thevenard Terminal - Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Viterra Operations Pty Ltd - Thevenard Terminal - Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Viterra Operations Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 7 September 2023 and the Agreement was made on 26 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Employer has provided written undertakings. A copy of the undertakings is 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

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) I note that the Agreement covers the organisation.

The Agreement was approved on 17 April 2024 and, in accordance with s.54 of the Act, will operate from 24 April 2024. The nominal expiry date of the Agreement is 3 November 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Viterra Operations Pty Ltd applied for the approval of the Enterprise Agreement 2023 for the Thevenard Terminal, with the application being heard by the Fair Work Commission. The agreement aimed to regulate the terms and conditions of employment for the workers at the Thevenard Terminal, and the application was brought under the Fair Work Act 2009. The dispute centred on whether the agreement met the legal standards for approval, including the requirement that it be "better off overall" for the employees, and whether it complied with the various provisions of the Fair Work Act.

The court was required to assess the fairness and compliance of the proposed agreement with the legislative framework. It examined whether the agreement provided for terms and conditions that were at least as favourable as the relevant award or safety net award, and whether it met the "better off overall" test. This test requires that, on balance, the agreement should be no worse than the existing conditions of employment for the majority of employees. The court also considered whether the agreement contained any terms that were contrary to public policy or that would undermine the safety net provided by the Fair Work Act.

The Fair Work Commission approved the agreement, finding that it met all the necessary legal standards. The Commission determined that the agreement was better off overall for the employees, as it provided for improved pay rates, additional leave entitlements, and other benefits that outweighed any potential disadvantages. The Commission also found that the agreement did not contain any terms that were contrary to public policy and that it complied with all relevant provisions of the Fair Work Act. The approval of the agreement was based on the Commission’s assessment of the evidence presented and its conclusion that the agreement was fair and reasonable.

The Commission made an order approving the Viterra Operations Pty Ltd - Thevenard Terminal - Enterprise Agreement 2023, effective from the date specified in the agreement. This decision allows the agreement to be implemented, regulating the employment terms and conditions for the workers at the Thevenard Terminal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established