DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestlé Australia Limited T/A Nestlé Australia
(AG2018/6393)

NESTLE AUSTRALIA LTD - NATIONAL UNION OF WORKERS - MERCHANDISERS ENTERPRISE AGREEMENT 2018-2021

Commercial sales
COMMISSIONER MCKINNON	MELBOURNE, 2 MAY 2019

Application for approval of the Nestle Australia Ltd - National Union of Workers - Merchandisers Enterprise Agreement 2018-2021.

[1] Application has been made for approval of a single enterprise agreement known as the Nestle Australia Ltd - National Union of Workers - Merchandisers Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Nestlé Australia Limited T/A Nestlé Australia.

[2] Written undertakings have been given in accordance with s.190 of the Act. 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] With 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2019. The nominal expiry date of the Agreement is 30 April 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Nestlé Australia Limited, trading as Nestlé Australia, applied for the approval of the Nestlé Australia Ltd - National Union of Workers - Merchandisers Enterprise Agreement 2018-2021. The application was made under the Fair Work Act 2009, and the matter was heard in the Fair Work Commission. The dispute centred around the validity and fairness of the proposed enterprise agreement, which was intended to govern the employment conditions of merchandisers employed by Nestlé Australia.

The legal issues that the court had to address were whether the enterprise agreement was genuinely negotiated and whether it met the requirements of the Fair Work Act, including being fair and reasonable. The court had to determine if the agreement contained all the mandatory terms required by the Act and whether it complied with the process provisions of the Act, such as the negotiation process and the good faith bargaining requirement. Additionally, the court examined if the agreement was free from prohibited content and if it met the provisions for employees’ interests.

In examining the application, the court considered the evidence and submissions presented by the parties. The court found that the enterprise agreement was genuinely negotiated and contained all the mandatory terms required by the Act. The court also determined that the agreement was fair and reasonable, met the process provisions of the Act, and did not contain any prohibited content. The court concluded that the agreement was in the best interests of the employees, considering their needs and the fairness of the terms. The court approved the enterprise agreement, finding it to be compliant with the relevant legislative requirements.

The final orders of the court were that the Nestlé Australia Ltd - National Union of Workers - Merchandisers Enterprise Agreement 2018-2021 be approved and registered under the Fair Work Act 2009. The approved agreement would now govern the employment conditions of the merchandisers employed by Nestlé Australia for the period of 2018 to 2021. The decision was binding on the parties and would ensure that the employees' rights and obligations were clearly defined and protected.

Nestlé Australia Limited T/A Nestlé Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established