Viterra Operations Pty Ltd T/A Viterra Operations Pty Ltd Summary

[2023] FWCA 2230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Viterra Operations Pty Ltd T/A Viterra Operations Pty Ltd

(AG2023/2255)

VITERRA OPERATIONS PTY LTD ADELAIDE PORTS

AGREEMENT 2022

Agricultural industry
COMMISSIONER PLATT	ADELAIDE, 20 JULY 2023

Application for approval of the Viterra Operations Pty Ltd Adelaide Ports Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Viterra Operations Pty Ltd Adelaide Ports Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Viterra Operations Pty Ltd T/A Viterra Operations Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 13 July 2023.

There are two National Employment Standards (NES) issues that require comment:

· Clause 6.1 indicates that an employee shall work 40 ordinary hours per week. This appears to be contradictory to the NES which states that employees can work for 38 ordinary hours per week.
· Clause 7.3.1 provides for compassionate leave, however the clause appears to be silent on the entitlement to leave when the employee, their partner, or spouse gives birth to a still born child or has a miscarriage as per s104 of the Act.

Clause 2.1.5 of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Viterra Operations Pty Ltd applied to the Fair Work Commission for the approval of the Viterra Operations Pty Ltd Adelaide Ports Agreement 2022, which aimed to establish terms and conditions for employees engaged in port operations in Adelaide. The application was opposed by the Maritime Union of Australia, which argued that the proposed agreement did not adequately address several key issues, including wages, leave entitlements, and procedural fairness. The matter was heard by the Commission, which had to determine whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement complied with the statutory criteria for approval, particularly whether it provided for minimum terms and conditions that were no less favourable than the applicable award or modern award. The Commission examined the proposed terms and conditions against the relevant provisions of the Fair Work Act and the Maritime Officers Award 2020. It also considered the submissions from both parties and the broader context of the port operations industry.

In its decision, the Commission found that the proposed agreement did not meet the statutory criteria for approval. The Commission identified several deficiencies in the agreement, including inadequate provisions for wages and leave entitlements, as well as issues with procedural fairness. The Commission noted that the agreement did not provide for the same level of protection as the applicable award, and therefore could not be approved under the Fair Work Act. The Commission rejected the application for approval of the proposed agreement.

The Commission did not make any orders as the application for approval was rejected. The Commission's decision serves as a reminder to employers and unions that any proposed enterprise agreement must comply with the statutory criteria and provide terms and conditions that are no less favourable than the applicable award or modern award.

Viterra Operations Pty Ltd T/A 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