Nestle Australia Limited

[2022] FWCA 4446

[2022] FWCA 4446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nestle Australia Limited

(AG2022/5019)

Nestle Australia Limited Victorian Confectionery Agreement 2021-2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 19 DECEMBER 2022

Application for approval of the Nestle Australia Limited Victorian Confectionery Agreement 2021-2024

1. An application has been made for approval of an enterprise agreement known as the Nestle Australia Limited Victorian Confectionery Agreement 2021-2024 (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. The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 December 2022.

1. On 8 December 2022, 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:

• The signature page on the Agreement did not meet the requirements prescribed by regulation 2.06A of the Fair Work Regulations 2009. I sought an amended signature page.

• Clause 7 of the Agreement stated that the Agreement shall operate from the date it is approved by the Fair Work Commission and was contrary to s.54 of the Act.

• The Agreement did not describe or define an employee as a shiftworker for the purpose of the National Employment Standards (NES), in accordance with s.187(4) and s.196 of the Act. I sought an undertaking to address this issue.

• The flexibility term in Clause 37.3 and the consultation term in Appendix 1 of the Agreement did not meet the requirements of s.203(2)(b) and s.205(1A) of the Act. I advised that the model flexibility and model consultation terms would be taken to be terms of the Agreement.

1. 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.

1. 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. 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.

1. The Construction, Forestry, Maritime, Mining and Energy 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.

1. The Agreement was approved on 19 December 2022 and, in accordance with s.54, will operate from 26 December 2022. The nominal expiry date of the Agreement is 24 November 2024.

COMMISSIONER

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Annexure A