Ferrero Australia Pty Ltd

[2022] FWCA 334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ferrero Australia Pty Ltd

(AG2021/9272)

APPLICATION FOR APPROVAL OF THE FERRERO AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021-2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER P RYAN	SYDNEY, 3 FEBRUARY 2022

Application for approval of the Ferrero Australia Pty Ltd Enterprise Agreement 2021-2025

Ferrero Australia Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Ferrero Australia Pty Ltd Enterprise Agreement 2021-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement

Sections 186, 187, 188 and 190

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.

Section 183

The Australian Manufacturing Workers Union (AMWU) 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 AMWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 February 2022. The nominal expiry date of the Agreement is 31 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ferrero Australia Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission (FWC). The agreement, intended to govern employment terms between the company and its workforce, was proposed for the period 2021-2025. The primary dispute centred around whether the proposed terms of the agreement were fair and reasonable under the Fair Work Act 2009. The FWC was required to assess the agreement’s compliance with various statutory requirements, including the Fair Work Act’s good faith bargaining provisions and the national minimum terms and conditions outlined in the modern awards.

The legal issues before the FWC involved the interpretation of the Fair Work Act and its associated regulations. The Commission needed to determine if the agreement was negotiated in good faith, if it contained terms that were no less favourable than the applicable award or safety net, and if the process adhered to the requirements for employee representation and consultation. Additionally, the FWC considered whether the agreement provided for a fair and efficient workplace, ensuring the protection of employees' rights and interests.

In reaching its decision, the FWC examined the process of negotiation, the terms of the agreement, and the evidence provided by both parties. The Commission found that the agreement had been negotiated in good faith and that it did not contain terms less favourable than the relevant modern award. The FWC concluded that the agreement was fair and reasonable, taking into account the needs and interests of both employees and the employer. Consequently, the FWC approved the Ferrero Australia Pty Ltd Enterprise Agreement 2021-2025, enabling it to be registered and enforced.

The final orders included the approval of the enterprise agreement, which was to be registered with the Fair Work Ombudsman. The agreement was to be in effect from the date of the FWC’s decision and would govern the employment terms for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established