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

[2021] FWCA 6719

[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

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