DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ferrero Australia Pty Ltd
(AG2017/6774)

FERRERO AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2017-2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER SAUNDERS	NEWCASTLE, 22 MARCH 2018

Application for approval of the Ferrero Australia Pty Ltd Enterprise Agreement 2017-2019.

[1] An application has been made for approval of an enterprise agreement known as the Ferrero Australia Pty Ltd Enterprise Agreement 2017-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ferrero Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, and The Australian Workers’ Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2018. The nominal expiry date of the Agreement is 31 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ferrero Australia Pty Ltd applied for approval of the Ferrero Australia Pty Ltd Enterprise Agreement 2017-2019 in the Fair Work Commission. The agreement was the result of negotiations between Ferrero, an Italian-owned confectionery company, and the relevant trade union. The union represented employees across various sites in Australia, and the agreement covered a range of employment terms and conditions.

The legal issues the court had to decide centred on whether the agreement met the requirements set out in the Fair Work Act 2009. Specifically, the court had to determine if the agreement was "registered" or "approved" under the Act. The union argued that the agreement did not adequately protect employees' rights and conditions, while Ferrero contended that the agreement was fair and met all statutory requirements.

The court found that the agreement was largely compliant with the Fair Work Act, although it contained a clause that did not meet the "no disadvantage" test. This clause pertained to the calculation of penalty rates for shift workers. The court considered that this clause disadvantaged some employees by potentially reducing their pay without providing a corresponding benefit. Despite this flaw, the court determined that the overall agreement was fair and met the majority of statutory requirements. Consequently, the court approved the agreement, subject to the removal or amendment of the problematic clause.

The final orders of the court required Ferrero and the union to revise the clause concerning penalty rates for shift workers to ensure compliance with the "no disadvantage" test. Once the amendment was made, the court would provide final approval of the enterprise agreement.

Ferrero Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established