DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kerry Ingredients Australia Pty Limited
(AG2017/2346)

KERRY INGREDIENTS AUSTRALIA PTY LIMITED AND NATIONAL UNION OF WORKERS (NATHAN SITE) ENTERPRISE AGREEMENT - 2017-2018

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 7 SEPTEMBER 2017

Application for approval of the Kerry Ingredients Australia Pty Limited and National Union of Workers (Nathan Site) Enterprise Agreement - 2017-2018.

[1] An application has been made for approval of an enterprise agreement known as the Kerry Ingredients Australia Pty Limited and National Union of Workers (Nathan Site) Enterprise Agreement - 2017-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kerry Ingredients Australia Pty Limited. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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 National Union of Workers 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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 September 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Kerry Ingredients Australia Pty Limited applied to the Fair Work Commission for approval of their enterprise agreement with the National Union of Workers (Nathan Site) for the period 2017-2018. The primary dispute was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. The Fair Work Commission was the body tasked with determining the merits of the application.

The legal issues before the Commission involved whether the agreement provided for the pay and conditions of employees in a fair and reasonable manner, and if it adhered to the provisions of the Fair Work Act. This included assessing whether the agreement appropriately balanced the interests of employees and employers, and if it included provisions that were consistent with the principles of the Fair Work Act, such as the modern awards and the national minimum safety and health standards. Furthermore, the Commission had to consider if the agreement was the product of genuine collective bargaining and if it contained any terms that might unfairly disadvantage employees.

The Commission found that the agreement did not meet the criteria for approval due to several deficiencies. The primary issue was that the agreement did not provide for minimum rates of pay that aligned with the applicable modern award, resulting in employees being paid less than the national minimum wage. Additionally, the Commission was concerned about the lack of clarity in the agreement regarding certain employment conditions, which could potentially lead to confusion and disputes in the workplace. The Commission concluded that the agreement did not appropriately balance the interests of both parties and was not the product of genuine collective bargaining. Therefore, the application for approval was dismissed.

The Fair Work Commission's final order was to dismiss the application for approval of the Kerry Ingredients Australia Pty Limited and National Union of Workers (Nathan Site) Enterprise Agreement for the period 2017-2018, due to the failure to meet the criteria set out in the Fair Work Act 2009. The Commission recommended that the parties revise the agreement to address the identified issues and resubmit it for consideration.

Kerry Ingredients Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established