Monde Nissin (Australia) Pty Ltd T/A Monde Nissin Australia

[2021] FWCA 6719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Monde Nissin (Australia) Pty Ltd T/A Monde Nissin Australia
(AG2021/8186)

MONDE NISSIN (AUSTRALIA) PTY LTD EASTGARDENS SITE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 17 NOVEMBER 2021

Application for approval of the Monde Nissin (Australia) Pty Ltd Eastgardens Site Enterprise Agreement 2021.

[1] Monde Nissin (Australia) Pty Ltd T/A Monde Nissin Australia (the Applicant) has made an application for approval of an enterprise agreement known as the Monde Nissin (Australia) Pty Ltd Eastgardens Site Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 10 November 2021.

[3] On 10 November 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Parties were notified that should the Agreement be approved, the nominal expiry date would not be more than 4 years after the day on which the Commission approves the agreement, pursuant to s.186(5)(b) of the Act.

• Parties were informed that should the Agreement be approved, clause 12 regarding deductions may be unenforceable.

• Clauses 10.9 regarding personal leave, 11.1 and 11.5 regarding termination and 6.4 regarding public holidays were inconsistent with the National Employment Standards (NES).

[4] The Applicant has submitted an undertaking in the required form dated 15 November 2021. The undertaking deals with the following topics:

• The Agreement will operate 7 days from the date which it is approved by the Fair Work Commission and shall have a nominal expiry date of 4 years from the date of approval (“the Term”).

• The employer has inserted a National Employment Standards (NES) precedence clause.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought its view in accordance with s.190(4) of the Act. The bargaining representative that responded supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as 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) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] 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 17 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Monde Nissin (Australia) Pty Ltd T/A Monde Nissin Australia, the Fair Work Commission (FWC) was called upon to consider an application for the approval of an enterprise agreement, specifically the Monde Nissin (Australia) Pty Ltd Eastgardens Site Enterprise Agreement 2021. This application was made by Monde Nissin, a food manufacturing company, in accordance with the Fair Work Act 2009. The agreement in question pertains to the employment conditions of workers at the company's Eastgardens site.

The central legal issues before the FWC were whether the enterprise agreement complied with the statutory requirements under the Fair Work Act, including whether it was fairly negotiated, contained all the necessary provisions, and adhered to the principles of good faith bargaining. The FWC also needed to determine whether the agreement was in the best interests of the employees and if it met the standards of the modern awards applicable to the workforce.

The FWC meticulously examined the negotiation process, the contents of the agreement, and the evidence presented by both parties. It found that the agreement had been fairly negotiated in good faith and that all mandatory terms and conditions were included. The commission noted that while some minor issues were raised concerning the agreement's provisions, these did not detract from the overall fairness and compliance of the agreement. The FWC concluded that the agreement was in the best interests of the employees and met the statutory requirements under the Fair Work Act.

As a result, the FWC approved the Monde Nissin (Australia) Pty Ltd Eastgardens Site Enterprise Agreement 2021, effective from the date of the decision. This approval signifies that the agreement will now form the basis for the employment conditions of the workers at the Eastgardens site.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established