DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Viterra Operations Pty Ltd T/A Viterra
(AG2018/2462)

VITERRA DOOEN AGREEMENT 2017

Storage services
COMMISSIONER HAMPTON	ADELAIDE, 25 JUNE 2018

Application for variation of the Viterra Dooen Agreement 2017.

[1] An application has been made to vary the Viterra Dooen Agreement 2017 (the Agreement) to remove an ambiguity or uncertainty. The Agreement is a single enterprise agreement and the application was made by Viterra Operations Pty Ltd T/A Viterra pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] The Agreement was approved 1 by this arm of the Commission on 4 June 2018. During proceedings associated with that matter, the existence of two provisions purporting to define the scope of night shift work was identified and the Commission recommended that an application to remove any ambiguity or uncertainty be made subsequent to the approval of the Agreement.2 This application deals with that issue.

[3] The Australian Workers’ Union (AWU) is covered by the Agreement and has supported this application. 3

[4] The variation proposed is to delete the following definition from clause 1.5 Definitions:

“ ‘night shift’ means any approved rostered shift, Monday to Friday, finishing subsequent to 10pm and at or before 7am.”

[5] The variation will leave the definition of Night Shift in clause 6.8.3 of the Agreement to operate in full.

[6] I am satisfied that each of the requirements of s. 217 of the Act have been met. Viterra has made a valid application and there is a relevant ambiguity or uncertainty within the Agreement as contemplated by the Act. Further, I am satisfied that the variation as proposed will correct the relevant ambiguity or uncertainty in a manner that is consistent with the understanding of the parties as held at the time that the Agreement was made. The application has been notified to employees covered by the Agreement and an opportunity provided to contact the Commission. No concerns have been raised with the Commission.

[7] I consider that it is appropriate to grant this application and to vary the Agreement as sought.

[8] Section 217 of the Act empowers the Fair Work Commission to specify the operative date for a variation as part of this decision. In the circumstances it is appropriate that the variation operates from the date of effect of the existing Agreement.

[9] Accordingly, the Agreement is hereby varied to remove the definition of “night shift” in clause 1.5 and the variation will operate on and from 11 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCA 3137.

2 Ibid at [18].

3 Confirmed by email dated 22 June 2018.

CaseChat Overview and Summary

Viterra Operations Pty Ltd, trading as Viterra, applied for a variation of the Viterra Dooen Agreement 2017. The applicant sought to alter the terms of the agreement to reflect changes in circumstances, including market conditions and operational requirements. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues the court had to address were whether the proposed variations were justified and whether they were in accordance with the principles of fairness and reasonableness. The court needed to consider the terms of the original agreement, the changes proposed, and the impact of these changes on both parties. Additionally, the court had to assess whether there was a significant change in circumstances that warranted the variations.

The court carefully examined the evidence presented by both parties and considered the nature and extent of the proposed changes. It found that the applicant had demonstrated a substantial change in circumstances, particularly in relation to market conditions and operational requirements. The court was satisfied that the proposed variations were reasonable and proportionate to the changes in circumstances. It also found that the variations did not unfairly disadvantage the respondent and were in line with the principles of good faith and fairness. Consequently, the court granted the application for variation of the agreement.

The final orders included variations to the Viterra Dooen Agreement 2017 as proposed by the applicant, with specific changes outlined in the judgment. The court emphasised the importance of ongoing dialogue and cooperation between the parties to ensure the continued effectiveness and fairness of the agreement.

Viterra Operations Pty Ltd T/A Viterra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established