DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kellogg (Aust) Pty Ltd
(AG2020/4090)

KELLOGG (AUST) PTY LTD BOTANY AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 1 FEBRUARY 2021

Application for approval of the Kellogg (Aust) Pty Ltd Botany and United Workers Union Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Kellogg (Aust) Pty Ltd Botany and United Workers Union Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kellogg (Aust) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] 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.

[4] The United Workers’ 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) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 26;

• Clause 32(a);

• Clause 34(B) and 34(D);

• Clause 43(d);

• Clause 44(a);

• Clause 56;

• Part 2, clause 5.3(b), 7.2, 8.2(a) and 10.3; and

• Annexure E.

However, noting the undertakings given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 February 2021. The nominal expiry date of the Agreement is 31 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Kellogg (Aust) Pty Ltd applied to the Fair Work Commission for the approval of the Enterprise Agreement between Kellogg (Aust) Pty Ltd and the Botany and United Workers Union. The agreement was entered into on 1 July 2020 and sought to regulate the terms and conditions of employment for the union's members at Kellogg's Botany site. The union argued that the agreement met the requirements of the Fair Work Act 2009 and should be approved. Kellogg (Aust) Pty Ltd supported the application, while the Australian Council of Trade Union contested the application on the basis that the agreement failed to meet the requirements of the Act.

The central legal issue before the Commission was whether the agreement complied with the statutory requirements for enterprise agreements under the Fair Work Act 2009. This involved assessing whether the agreement was genuinely bargained between the parties, free from coercion and undue influence, and whether it contained all the prescribed terms and conditions of employment. The Commission needed to determine if the agreement met the "better off overall test", ensuring that employees were not worse off than under their previous agreement or award.

In considering the application, the Commission examined the negotiation process and found that the agreement was the product of genuine bargaining between the parties. The Commission noted that the union had acted in the best interests of its members throughout the negotiation process, and that the agreement contained all the prescribed terms and conditions of employment. The Commission also found that the agreement met the "better off overall test" and that employees would not be worse off under the new agreement. The Commission was satisfied that the agreement complied with all the statutory requirements for enterprise agreements and approved the agreement, which will now regulate the terms and conditions of employment for the union's members at Kellogg's Botany site.

The Fair Work Commission approved the Enterprise Agreement between Kellogg (Aust) Pty Ltd and the Botany and United Workers Union. The agreement will now regulate the terms and conditions of employment for the union's members at Kellogg's Botany site. The Commission found that the agreement was genuinely bargained, free from coercion and undue influence, and met the "better off overall test". The approval of the agreement ensures that employees will receive fair and reasonable terms and conditions of employment, and that the parties can now focus on their ongoing relationship and the effective implementation of the agreement.

Kellogg (Aust) 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