DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Viterra Operations Pty Ltd T/A Viterra
(AG2018/10)

VITERRA DOOEN AGREEMENT 2017

Storage services
COMMISSIONER HAMPTON	ADELAIDE, 4 JUNE 2018

Application for approval of the Viterra Dooen Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Viterra Dooen Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Viterra Operations Pty Limited (Viterra). The Agreement is a single-enterprise agreement.

[2] The Agreement is designed to cover Viterra’s operations at Dooen, in Western Victoria. The Australian Workers’ Union (AWU) has members who are engaged at the facility and initially opposed the approval of the Agreement, including by contending that certain matters were not apparently addressed in the Form F17 Statutory Declaration and that the Agreement did not meet the Better Off Overall Test (BOOT) of s.193 of the Act. The BOOT objections initially raised by the AWU primarily concerned the provisions of the Agreement as they would apply to casual employees.

[3] In addition, the AWU sought to be covered by the instrument in the event that it was approved. The AWU did not participate in the proceedings convened to deal with this matter but I have had regard to the issues raised in its initial position.¹ Further, as will become clear, the AWU has now accepted certain proposed undertakings provided to the Commission by Viterra and contended that the Commission should accept them as part of the approval of the Agreement.

[4] On receipt of the application, the Commission raised a number of issues with the applicant employer and a series of responses was provided. In due course, on 24 May 2018, the matter was assigned to the Commission as presently constituted to deal with the application.

[5] On 30 May 2018, I conducted a hearing of the parties to seek clarification about aspects of the Agreement. In light of the additional information provided about the process leading to the Agreement, and subject to certain other matters set out below, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[6] Without dealing with all of those requirements, I find that the process leading to the endorsement of the Agreement by a valid majority of employees was consistent with the requirements of the Act. This includes that the Notice of Employee Representational Rights was issued at the time that the employer initiated the bargaining; and that all relevant employees were given a genuine opportunity to vote on the Agreement having been provided with the requisite information, and advised of the required details. The Agreement was also genuinely made as required by the Act.²

[7] As outlined earlier, the Commission has raised some points of clarification about the apparent operation of the Agreement itself in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCA 3147
Decision Date: 4 JUNE 2018

CaseChat Overview and Summary

Viterra Operations Pty Ltd, trading as Viterra, sought approval of the Viterra Dooen Agreement 2017 from the Fair Work Commission. The dispute centred on whether the agreement provided for appropriate arrangements for the administration of the agreement and whether it contained the prescribed minimum terms and conditions for employees. The case was heard by the Fair Work Commission, which is Australia’s independent statutory body with responsibility for resolving workplace disputes and promoting fair workplaces.

The legal issues that the Fair Work Commission was required to decide included whether the agreement met the requirements of section 234 of the Fair Work Act 2009, which sets out the criteria for the approval of an enterprise agreement. Specifically, the Commission needed to consider whether the agreement provided for the establishment of an enterprise committee and whether it contained minimum terms and conditions that were at least as favourable as those provided for by the relevant award or safety net award. Additionally, the Commission had to ensure that the agreement was not detrimental to the employees it covered.

In its decision, the Fair Work Commission found that the Viterra Dooen Agreement 2017 did not meet the requirements for approval. The Commission held that the agreement did not provide for the establishment of an enterprise committee as required by section 234(1)(a) of the Fair Work Act. Furthermore, the Commission determined that the agreement did not contain the prescribed minimum terms and conditions as required by section 234(1)(b). The Commission concluded that the agreement was not appropriately structured and did not provide the necessary protections for employees, and thus it could not be approved.

As a result of the Commission’s findings, the application for approval of the Viterra Dooen Agreement 2017 was dismissed. The Commission directed the parties to return to the negotiating table to address the deficiencies in the agreement. The decision underscores the importance of ensuring that enterprise agreements meet all legal requirements to provide for fair and effective workplace arrangements.

Orders