Nestle Australia Limited T/A Uncle Tobys

[2021] FWCA 5858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestle Australia Limited T/A Uncle Tobys
(AG2021/6990)

NESTLE AUSTRALIA LTD (UNCLE TOBYS WAHGUNYAH) & UNITED WORKERS’ UNION AGREEMENT 2020

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 SEPTEMBER 2021

Application for approval of the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nestle Australia Limited T/A Uncle Tobys. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Notice of Employee Representational Rights was printed on company letterhead, including the employer’s logo and head office postal address, and was therefore not provided in the form prescribed by s.174(1A). However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 11.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 September 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Nestle Australia Limited, trading as Uncle Tobys, and the United Workers’ Union. The dispute centred on the application for approval of an enterprise agreement, specifically the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020. The Fair Work Commission (FWC) was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement complied with the provisions of the Fair Work Act, particularly focusing on the procedural fairness in the negotiation process and whether the agreement covered all necessary matters. The FWC needed to assess whether the union had genuinely represented its members, whether the agreement was made in good faith, and if it provided for the proper payment of wages and conditions. Additionally, the court had to consider whether the agreement adhered to the Fair Work Act’s substantive requirements, ensuring it did not undermine the rights of employees.

The FWC found that the agreement was made in good faith and that the union had genuinely represented its members. The commission approved the agreement, noting that it provided for the proper payment of wages and conditions and did not contain any provisions that were contrary to the public interest or that undermined the rights of employees. The FWC was satisfied that all procedural fairness requirements had been met, and the agreement was comprehensive, covering all necessary matters.

The Fair Work Commission approved the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020, finding it to be compliant with the Fair Work Act. This decision ensures that the agreement is legally binding and that it provides adequate protections for the employees involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established