Monde Nissin (Australia) Pty Ltd Summary

[2024] FWCA 1123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Monde Nissin (Australia) Pty Ltd

(AG2024/701)

APPLICATION FOR APPROVAL OF THE MONDE NISSIN (AUSTRALIA) PTY LTD CLAYTON SOUTH SITE ENTERPRISE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 28 MARCH 2024

Application for approval of the Monde Nissin (Australia) Pty Ltd Clayton South Site Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Monde Nissin (Australia) Pty Ltd Clayton South Site Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Monde Nissin (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

The agreement title in the Notice of Representational Rights (NERR) distributed to employees is slightly different to the agreement title of the Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical departure from the NERR requirements under s.174 of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 April 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Monde Nissin (Australia) Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement for its Clayton South site. The application was made under the Fair Work Act 2009, seeking to resolve disputes between the company and its employees represented by the Shop, Distributive and Allied Employees' Association. The agreement aimed to set out terms and conditions of employment for workers at the Clayton South site, including pay rates, hours of work, leave provisions, and other employment matters.

The central legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act, including the "better off overall test" and whether the agreement was fairly and genuinely negotiated. The Commission also considered whether the agreement contained any provisions that would unduly harm employees or contravene any provisions of the National Employment Standards. Additionally, the Commission had to ensure that the agreement did not include any unlawful content and complied with other relevant legislative provisions.

The Fair Work Commission found that the enterprise agreement was fairly and genuinely negotiated, and it met the requirements of the Fair Work Act. The Commission determined that the agreement was likely to result in employees being "better off overall" when compared to the applicable awards and the National Employment Standards. The Commission noted that the agreement contained provisions that were beneficial to employees, including pay increases, improved leave entitlements, and better working conditions. The Commission also found that the agreement did not contain any provisions that would unduly harm employees or contravene any provisions of the National Employment Standards.

The Commission approved the Monde Nissin (Australia) Pty Ltd Clayton South Site Enterprise Agreement 2023, which will now apply to employees at the Clayton South site from the effective date specified in the agreement. The approval of the agreement ensures that employees will receive the benefits outlined in the agreement and that the terms and conditions of their employment will be governed by the provisions of the enterprise agreement.

Monde Nissin (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established